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OPEN SOURCE HOST Terms of Service Agreement
This Agreement defines the terms and conditions of OPEN SOURCE HOST's services as listed at http://OpenSourceHost.com/products as (the "Services"). To become a OPEN SOURCE HOST accountholder, you must be at least 18 years of age and, 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 at http://OpenSourceHost.com/legal by OPEN SOURCE HOST. OPEN SOURCE HOST may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered at any time. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services. As part of the Services, OPEN SOURCE HOST will provide your own web-based Customer Management Interface (the "Customer Manager") which is located at https://my.OpenSourceHost.com. You agree to login to the Customer Manager at least once every thirty (30) days. The Customer Manger contains customer contact information, billing information, product information, product logins, and customer support information. You agree to update your OPEN SOURCE HOST Customer Manager with accurate contact and billing information, including your legal name, address, telephone number, e-mail address immediately if any changes occur.
1. Scope of Services and Obligations
1.1. Knowledge to use Services
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. You assume responsibility for all material on your website that may be put on by a third party. 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. OPEN SOURCE HOST assumes no responsibility to provide you with such knowledge.
1.2. A. You agree to comply with the requirements of the Digital Millennium Copyright Act (the "DMCA"), which can be found at http://www.copyright.gov/legislation/pl105-304.pdf and acknowledge that OPEN SOURCE HOST 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, OPEN SOURCE HOST will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, OPEN SOURCE HOST has a policy of terminating accountholders who are repeat copyright infringers.
1.2. B. OPEN SOURCE HOST 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 OPEN SOURCE HOST, in its sole discretion, may cancel, transfer, suspend or otherwise make changes to the domain registration if OPEN SOURCE HOST (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.C. You understand that OPEN SOURCE HOST has no obligation to defend you in the event any dispute arises in connection with the Domain Name.
1.2. C. In connection with requesting that OPEN SOURCE HOST assist you with registration services, you represent and warrant the following: (a) the registration you have asked OPEN SOURCE HOST to make is not made with a "bad faith intent" (as that term is used in the Anti-cyber squatting Consumer Protection Act, 15 U.S.C. ? 1125, which can be found at http://cyber.law.harvard.edu/property00/domain/legislation.html (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 is complete and accurate. OPEN SOURCE HOST makes no representation or warranties of any kind regarding the availability, or the propriety of any use of, any Domain Name requested by you. OPEN SOURCE HOST 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. D. Prohibited Organizations/Entities. The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States, through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has determined that certain organizations and/or entities (collectively "Prohibited Organizations/Entities" and individually "Prohibited Organization/Entity") are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United States, its citizens and residents. The Prohibited Organizations/Entities are those as set forth in the applicable records of the government of the United States, including without limit those set forth at: http://www.ustreas.gov/ofac; and, http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time. Each Prohibited Organization/Entity is hereby prohibited from registering or signing up with, subscribing to, or using any service of OPEN SOURCE HOST.
1.3. A. If you secure your account with a credit card, electronic check, or PayPal account, you acknowledge that OPEN SOURCE HOST will collect payment using the provided payment method prior to providing service. You understand that OPEN SOURCE HOST may use Merchant Updater Services to receive updated credit card information from participating providers; and authorize automatic billing by OPEN SOURCE HOST on an on-going basis for subsequent terms of service unless you cancel your service prior to the start of a new term. If you wish to cancel your service, you must do so prior to your next bill date to avoid being charged for additional terms of service.
1.3. B. Services provided by OPEN SOURCE HOST can be cancelled within 30 days of the next product bill date through your Customer Manager, which is located at https://my.OpenSourceHost.com. If you wish to cancel your Service, you must do so prior to your next bill date to avoid being charged for additional terms of service. OPEN SOURCE HOST does not offer prorated refunds. Once money has been received on an account, this account will be considered under contract for the service provided by OPEN SOURCE HOST for the term of the service. This policy is in effect for all service at OPEN SOURCE HOST.
1.4. Acceptable and Intended Use Policy
1.4. A. 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.com. 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 (http://it.ojp.gov/default.aspx?area=privacy&page=1285), the Computer Fraud and Abuse Act (http://cio.energy.gov/documents/ComputerFraud-AbuseAct.pdf), or the Economic Espionage Act (http://www.justice.gov/criminal/cybercrime/eea.html). Linking to illegal material is also prohibited. When OPEN SOURCE HOST becomes aware of possible violations of this Agreement, OPEN SOURCE HOST may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on OPEN SOURCE HOST's servers. OPEN SOURCE HOST, 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 OPEN SOURCE HOST HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY OPEN SOURCE HOST AS PART OF ITS INVESTIGATION OF 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 OPEN SOURCE HOST AS A RESULT OF OPEN SOURCE HOST'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 OPEN SOURCE HOST'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
1.4. B. Hosting space is intended for normal use only, and is limited to Web files, active e-mail and content of the hosted Web sites, not for offsite storage of electronic files, electronic mail or FTP hosts. You are responsible for removing any files, e-mails or other data which do not meet these requirements, and for adhering to any usage requirements or limits allocated to your account(s). Failure to do so may result in removal and deletion of such materials (including without limitation files and e-mails), and/or in discontinuation of your services or account, which actions we may take in our sole discretion.
1.4. C. 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. Where there are allegations that your on-line activity has violated the legal rights of a third party, OPEN SOURCE HOST will not substitute itself for a court of law in deciding tort claims raised by the third party.
1.4. D. 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 OPEN SOURCE HOST 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. You may send a maximum of 1000 solicited emails per day, to send more than this you must have express written permission from OPEN SOURCE HOST. You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages. OPEN SOURCE HOST may disclose the usernames of accounts responsible for forged email messages to system administrators or users requesting the information. Any violations of the aforementioned terms will result in account suspension or termination.
1.4. E. You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at OPEN SOURCE HOST 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, OPEN SOURCE HOST 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. OPEN SOURCE HOST will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
1.4. F. System abuse includes any use of OPEN SOURCE HOST 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 OPEN SOURCE HOST server without OPEN SOURCE HOST's prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of OPEN SOURCE HOST's servers. The use of more than 50,000 inodes on any shared hosting account may result in a warning, and if no corrective action is taken, OPEN SOURCE HOST reserves the right to suspend or terminate services.
1.5. Accountholder Data Backup Responsibility
1.5. A. OPEN SOURCE HOST will attempt to retain nightly backups. However, as with any data storage systems, backups can fail. We encourage you to perform your own backups on a periodic basis. Because of this your use of this service is at your sole risk. OPEN SOURCE HOST is not responsible for files and/or data residing within your services. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on OPEN SOURCE HOST.
2. Limitation of Liability and Indemnification
2.1. IN NO EVENT SHALL OPEN SOURCE HOST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF OPEN SOURCE HOST SERVICES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE OPEN SOURCE HOST'S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OPEN SOURCE HOST'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF OPEN SOURCE HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OPEN SOURCE HOST'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO OPEN SOURCE HOST 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, OPEN SOURCE HOST'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
2.2. You agree to indemnify, defend and hold OPEN SOURCE HOST 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 OPEN SOURCE HOST'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 OPEN SOURCE HOST'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 OPEN SOURCE HOST'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 OPEN SOURCE HOST's compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by OPEN SOURCE HOST pursuant to Section 5.1, if any controversy or dispute arises in connection with this Agreement, the Services or your use of OPEN SOURCE HOST's servers, such controversy or dispute shall first be presented for resolution by OPEN SOURCE HOST 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.
4.1. A. You may not assign your rights and obligations under this Agreement without the prior written consent of OPEN SOURCE HOST, which may be withheld at OPEN SOURCE HOST'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 OPEN SOURCE HOST to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by OPEN SOURCE HOST 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 OPEN SOURCE HOST. 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 OPEN SOURCE HOST and supersede and govern all prior proposals, agreements, or other communications.
5. OPEN SOURCE HOST's Right to Terminate Agreement
5.1. OPEN SOURCE HOST reserves the right to suspend or terminate the Services to you and remove or prevent access to any OPEN SOURCE HOST servers at any time, without prior notice or liability, for any conduct that OPEN SOURCE HOST, in its sole discretion, believes violates this Agreement or is otherwise harmful to OPEN SOURCE HOST's interests or the interests of other accountholders. OPEN SOURCE HOST 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 OPEN SOURCE HOST 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.