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Perky Penguins' Web Hosting
- Terms of Service -

THIS IS A LEGAL BINDING CONTRACT. IF YOU HAVE ANY QUESTIONS CONCERNING YOUR RIGHTS OR RESPONSIBILITIES UNDER THIS CONTRACT CONTACT AN ATTORNEY BEFORE YOU ORDER ANY HOSTING SERVICES.

Ordering a Hosting Plan with Perky Penguins Web Services (hereafter “Perky Penguins”) signifies that the Customer agrees to and abides by the following contractual provisions (hereafter "Agreement").

In consideration of perkypenguin’s providing services to Customer, in which Customer agrees to timely pay for said services, which each party acknowledges as good and valuable consideration both parties agree that:

Both parties agree that the purpose of this Agreement is for Perky Penguins to provide web hosting services to the customer which includes, but is not limited to, the following services: providing disk space on an internet server, allowing said disk space to be accessible over the internet, providing e-mail capability to customer and to generally provide customer with the services more fully described on the hosting plans web page at the time customer orders hosting services.

Customer agrees that Customer will abide by, at all times, all the terms conditions in the current Acceptable Use Policy located at http://perkypenguins.com/services/hosting/aup.htm. Failure to do so is considered a breach of this Agreement and Customer agrees that in the event of a Customer breach due to violations of the Acceptable Use Policy Customer shall forfeit any monies paid to Perky Penguins as compensation for said breach in addition to all damages suffered by Perky Penguins due to a violation of the Acceptable Use Policy. In the event the breach involves spamming, or any related activity to spamming, Customer agrees to pay a penalty of $750.00 (U.S. Dollars) for each violation in addition to any damages caused to Perky Penguins and Customer fully acknowledges and authorizes Perky Penguins to debit any credit card said amount for each violation.

Customer acknowledges that there may be limits upon Customer's account and that violating said limits of the account shall incur additional fees above and beyond the base price for the hosting plan. A few of these additional fees which may be charged to Customer's account, without Customer's prior knowledge include, but are not limited to, overages on the amount of disk space used by Customer, overages of the transfer rate for Customer's account, and/or using an account in violation of the current Acceptable Use Policy. A full listing of the additional fees can be found on Perky Penguin’s web site. Overages based upon the transfer rate will be rounded up to the next highest gigabyte for fee calculations. It is the Customer’s responsibility to be aware of the fee schedule and to monitor Customer’s account. There is no responsibility for Perky Penguins to notify Customer of an upcoming overage or notification that Customer may exceed Customer’s limit.

Customer acknowledges that Customer's account will automatically renew after the initial term of the hosting plan unless Customer provides Perky Penguins a written cancellation 20 days before the expiration of the current contract period. Under no circumstances will Perky Penguins raise the prices of the renewal term without first contacting Customer for Customer's approval. Customer may, however, terminate this Agreement at any time before the expiration of the contract period but will not receive a pro-rata refund for any portion of the hosting plan contract period not utilized. Customer will receive a full refund, however, if Customer terminates the account in writing within 30 (thirty) days of the initial order date of the hosting plan provided that Customer has not violated the current Acceptable Use Policy, in which case, if Customer has violated said policy Customer agrees to forfeit as partial compensation for damages all monies paid to Perky Penguins by Customer with no possibility for refund and the possibility of spamming violation charges as previously mentioned. Customer further acknowledges that Perky Penguins can terminate this Agreement at any time for violations of the current Acceptable Use Policy and not provide Customer a refund of any monies paid if Customer has violated the current Acceptable Use Policy. If Perky Penguins decides to terminate this Agreement for any other reason besides violations of the current Acceptable Use Policy, Customer will receive a pro-rata refund of the hosting plan period not utilized by the early termination by Perky Penguins based upon the amount of days left not utilized by the early termination.

Customer acknowledges that if Customer uses Perky Penguins' services and then initiates a chargeback(s) after using services defined under this Agreement, Perky Penguins will notify the local law enforcement office of the theft of services and will institute civil proceedings to recover the monies due under this Agreement. Customer acknowledges that if Perky Penguins institutes civil proceedings to recover said monies, Customer agrees that Customer will be liable for all court costs, and will be liable to Perky Penguins for all attorneys' fees Perky Penguins has to pay to proceed in the recovery of said monies.

Perky Penguins RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE FOR ANY REASON NOT PROHIBITED BY LAW. Perky Penguins ALSO RESERVES THE RIGHT TO TERMINATE SERVICE TO ANY CUSTOMER FOR ANY REASON NOT PROHIBITED BY LAW. YOU AGREE TO USE ALL Perky Penguins' SERVICES AT YOUR OWN RISK. Perky Penguins SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND IN NO EVENT SHALL Perky Penguins BE LIABLE FOR ANY LOSS, OR LOSS OF DATA, OR OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES CAUSED BY ANY NEGLIGENCE BY Perky Penguins OR ANY SUPPLIER, PROVIDER OR OTHER BUSINESS ASSOCIATED WITH Perky Penguins. CUSTOMER FULLY UNDERSTANDS THAT CUSTOMER IS ULTIMATELY RESPONSIBLE FOR THE BACKUPS OF ALL OF THEIR WEBSITE DATA AND CUSTOMER CANNOT HOLD LIABLE Perky Penguins FOR THE LOSS OF SUCH DATA.

Customer agrees that it shall defend, indemnify, save and hold Perky Penguins harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against Perky Penguins, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Perky Penguins against liabilities, including but not limited to, the following:
  1. Any injury to person or property caused by any products sold or otherwise distributed in connection with any of Perky Penguins' services.
  2. Any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party.
  3. Copyright infringement.
  4. Any defective products sold to customer from Perky Penguins.

Customer agrees that Customer's sole remedy in the event of a default by Perky Penguins is the recovery of the amount of money paid to Perky Penguins by Customer as liquidated damages and that there shall be no money paid for damages based upon negligence, tort liability, punitive damages, consequential damages and/or any attorneys' fees paid Customer in pursuing any rights Customer may have under this Agreement or the law.

Customer agrees that Customer is the end user of these services and that Customer cannot assign, sublet, resell or otherwise distribute these services to anyone else without prior written consent of Perky Penguins.

Customer and Perky Penguins agree that venue and jurisdiction for any disputes arising from this Agreement shall be litigated in the county of the state where Perky Penguins’ business office is currently located and all disputes against Perky Penguins by Customer must first go to non-binding mediation, and attempt to resolve the dispute in good faith, in the venue and jurisdiction of Perky Penguins' business office. Failure of Customer to attempt a good faith resolution in non-binding mediation shall prohibit Customer from proceeding in a civil court action.

This Agreement constitutes the entire Agreement between the parties. There are no other representations, either oral or written (except those mentioned herein), between the parties with respect to this Agreement.

This Agreement is the result of negotiations by both parties and the authorship of this Agreement shall be neutrally interpreted and not strictly interpreted against the drafter.

If a court of competent jurisdiction shall invalidate any provision or section within this Agreement such adjudication shall not render the rest of this Agreement invalid or void.

This Agreement is subject to, shall be interpreted by, and governed by the laws of the State of Ohio.

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