VIEW TOS IN IT'S OWN WINDOW
IMPORTANT NOTICE: *All Payments To Who Hosting Are Non-Refundable*
Who Hosting ("The Company") agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).
Use of Who Hosting Service constitutes acceptance and agreement to Who Hosting's AUP as well as Who Hosting's TOS (Terms of Service).
All provisions of this contract are subject to the TOS (Terms of Service) of Who Hosting and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.
This Agreement shall be construed in all respects in accordance with the laws of the state of California, county of Fresno applicable to contracts enforceable in that state. Venue will be Fresno County, California.
Disclosure to Law Enforcement: The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition Who Hosting shall have the right to terminate all service set forth in this Agreement.
Service Rates: Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have 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 cost of service goals including but not limited to rates charged to company by its suppliers.
Payment: Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month's service. All accounts and services provided by Who Hosting are subject to the current tax rate as imposed by the City of Fresno, State of California which is currently 7.85%. 80% of the monthly service charge is subject to the 7.85% tax rate, while the remaining 20% of the monthly service charge is not taxed. 100% of the setup fee is subject to the 7.85% tax rate. The above applies to all accounts and services provided by Who Hosting.
Payments and Fees: Credit cards that are declined for any reason are subject to a $1.00 declination fee. Service will be interrupted on accounts that reach 10 days past due. Service interrupted for nonpayment is subject to a $200 reconnect charge. Accounts not paid by due date are subject to a $7.95 late fee. Accounts that are not collectable by Who Hosting may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than $50 nor more than $150. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
Refund and Disputes: All payments to Who Hosting, Inc. are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in Who Hosting's sole discretion is a valid charge under the provisions of the TOS and /or AUP, you agree to pay Who Hosting an "Administrative Fee" of not less than $50 and not more than $150.
Failure to Pay: The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
Account Cancellation: All requests for canceling accounts must be made via email here with at least 30 days notice but not more than 60 days prior written notice. You must have all account information to cancel.
Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many 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 arising for any reasons whether determined to be the fault of Who Hosting or not. Subscriber further acknowledges that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. Who Hosting offers no warrenties offered or implied for any services or products the company offers. In no event shall the company be liable for any special or consequential damages, loss or injury.
New Domain Accounts: All new webhosting accounts involving new domains will be set up and entered into our DNS servers within 3 to 5 business days. Due to unforeseen complications, however, this process may sometimes require up to 7 business days. If the new domain is registered by the account holder, there will be no handling fee. If the domain is registered by Who Hosting on behalf of the account holder a handling fee will be incurred.
Transfer of Domains: New webhosting accounts which involve the transfer of a domain from another provider to Who Hosting will require a minimum of seven (7) days to be set up and entered into our DNS servers. In some cases, such transfers may take up to sixty (60) days. Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may take. If the transfer of the domain is done by Who Hosting on behalf of the account holder a handling fee will be incurred. If the customer cancels service during the transfer period for any reason, all charges are considered earned.
Support Boundaries: Who Hosting, provides technical support to our subscribers via email. (Such issues should be directed here ) We limit our technical support to our area of expertise. The following is our guidelines when providing support: Who Hosting provides support related to your server or virtual site physical functioning. Who Hosting does not offer tech support for application specific issues such as cgi programming, html or any other such issue unless stated otherwise in a work contract. Who Hosting does not provide technical support for YOUR customers. Lastly, the Help files in the program you are using may have the answer to your question so please do investigate these resources before calling tech support.
SPAM and Unsolicited Commercial Email (UCE): Who Hosting takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers of Who Hosting may not use or permit others to use our network to transact in UCE. Customers of Who Hosting may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
Violation of Who Hosting's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Who Hosting will initiate an immediate investigation (within 48 hours of notification). During the investigation, Who Hosting may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Who Hosting may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Who Hosting reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Who Hosting will notify law enforcement officials if the violation is believed to be a criminal offense.
First violations of this policy will result in an "Administrative Fee" of $250 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $250 per hour that Who Hosting personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account.
As our Customers are ultimately responsible for the actions of their clients over the Who Hosting network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
IMPORTANT NOTICE:
BEGINNING IMMEDIATELY, anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server/site/domain/account immediately removed from our network. It not be reconnected/activated until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.
Network
IP Address Ownership: If Who Hosting assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to Who Hosting, and Customer shall have no right to use that Internet Protocol address except as permitted by Who Hosting in its sole discretion in connection with the Services, during the term of this Agreement. Who Hosting shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Who Hosting, and Who Hosting reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN's new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What 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: Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). Who Hosting will monitor Customer's bandwidth and disk usage. Who Hosting shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in Who Hosting's sole and absolute discretion. If Who Hosting takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, Who Hosting may, at its sole discretion, collect a deposit, in an amount determined by Who Hosting, against customer's credit card on file with Who Hosting.
System and Network Security: Users are prohibited from violating or attempting to violate the security of the Who Hosting Network. Violations of system or network security may result in civil or criminal liability. Who Hosting will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access.
Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing".
Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Taking any action in order to obtain services to which such User is not entitled.
Notification of Violation:
Who Hosting is under no duty to look at each customer's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
First violation: Any User, which Who Hosting determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at Who Hosting's discretion to a temporary suspension pending a User's agreement in writing, to refrain from any further violations.
Second Violation: Users that Who Hosting determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
We reserve the right, to drop the section of IP space involved 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 network or a customer's network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
Suspension of Service or Cancellation: Who Hosting reserves the right to suspend network access to any customer if in the judgment of the Who Hosting network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which Who Hosting chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended.
Policy Changes: Who Hosting reserves the right to amend its policies at any time. All Sub-Networks, resellers and managed servers of Who Hosting must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter described on these Terms and conditions. Therefore, it is in your best interest to implement a similar or stricter Terms and conditions or otherwise called Acceptable Terms of use policy.
Indemnification: Who Hosting wishes to emphasize that in agreeing to the Who Hosting Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies Who Hosting for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to Who Hosting or the bringing of any claim against Who Hosting by any third-party. This means that if Who Hosting is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against Who Hosting, plus all costs and attorney's fees.
Miscellaneous Provisions: You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.
A waiver by the Company of any breach of any provision of this Agreement 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.
Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.
Who Hosting takes no responsibility for any material input by others and not posted to the Who Hosting Network by Who Hosting. Who Hosting is not responsible for the content of any other websites linked to the Who Hosting Network; links are provided as Internet navigation tools only. Who Hosting disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.
Who Hosting is not responsible for any damages your business may suffer. Who Hosting does not make implied or written warranties for any of our services. Who Hosting denies 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 Who Hosting.
It is absolutely forbidden to host pornographic content or IRC servers on Virtual Server Accounts. Virtual Server Accounts found hosting this material will be subject to immediate cancellation without refund.
Responsibility for Content: You, as Who Hosting's customer, are solely responsible for the content stored on and served by your Who Hosting server.
Excessive Use: If your hosting account, with Who Hosting, goes over the bandwidth allowance set for that account, you agree to pay for that overage. Currently, the rate charged by Who Hosting for bandwidth is $4.00 per 500 MBytes. If your account goes over its bandwidth allowance for the month, you must either upgrade your account or purchase additional bandwidth to cover your account bandwidth usage. If you choose additional bandwidth, you must purchase in 500 MByte increments and you must purchase enough to cover the remaining term of your hosting account. All bandwidth/traffic/diskspace amounts are measured in MBytes/GBytes. Accounts using up enough server resources, to slow or crash a server, will be shut down or at the choice of the customer be moved to a dedicated server in which more fee's apply. The cost of such move will be dependent upon the customers needs and will be determined at that time. Who Hosting reserves the right to shut down the site in the interim of such decisions.
Trademarks and Copyrights: The client represents to Who Hosting and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Who Hosting for inclusion in Web pages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Who Hosting from any claim or suit arising from the use of such elements furnished by the client. Copyright to the assembled work of Web pages produced by Who Hosting is owned by Who Hosting. Upon final payment of this contract, all rights owned by Who Hosting as to the design, graphics, and text in this Web site transfer to the client.
Subcontracting: Who Hosting reserves the right to assign other Web designers or subcontractors to this project.
Shopping Carts and Credit Card Numbers: Who Hosting does not allow the storage of credit cards on Who Hosting's network. Other ecommerce tools are allowed provided they do not violate the TOS or AUP such as but not limited to shopping carts. However credit card numbers under no circumstances may be stored on the Who Hosting network. The use of an outside gateway such as authorize.net is encouraged for credit card submission, storage, use, etc..
Additional Warranties and Liabilities: Who Hosting does not warrant that the functions of the web site will meet the client's expectations of site traffic or resulting business. In no event will Who Hosting or its sub-contractors be liable to the client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these Web pages or Web site, even if Who Hosting has been advised of the possibility of such damages.
