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Web
Hosting
Terms of Service |
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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:
- Any injury to person or property caused by any products sold or
otherwise distributed in connection with any of Perky Penguins'
services.
- Any material supplied by Customer infringing or allegedly infringing
on the proprietary rights of a third party.
- Copyright infringement.
- 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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