This Agreement (the "Agreement") comprises the terms and conditions ("the Conditions") that govern the provision of the Services, as defined below, to the clients (the "Client") of 9th Node Networks, a Colorado corporation whose registered office is 1131 W. Colorado Ave. STE B, Colorado Springs, Colorado 80904 (the "Company").
The Conditions, as defined below, explain the Company's responsibilities to the Clients and the Client's responsibilities to the Company and to other users of the internet. The Conditions in particular outlines what the Company considers to be unacceptable use of the internet by its Clients and is necessary in order to enable the Company to take appropriate steps against abusers of the internet.
For the avoidance of doubt, the terms of this Agreement are not binding on the Company unless and until the Company sends confirmation of it's acceptance to the Client in the form of the Acceptance Email.
The Company may change the Conditions at the sole discretion of the Company. In such an event, reasonable notification will be given by the Company by providing a revision date on the newly posted Conditions on the company's Web Site. It is the responsibility of the Client to regularly check for any such updates.
Following such notification, if the Client does not wish to accept such changes, the Client may terminate the Agreement at any point within twenty-four hours of notification of the change by providing written notice of termination to the Company. If the Client continues to use the Services more than twenty-four hours following any changes having taken effect, such use of the Services will be deemed to constitute acceptance of any changes and the Client will be bound by any new terms for the remainder of the Term.
The Company and Client agree that the Company is solely acting as a common carrier in its capacity of providing Services hereunder, is not a publisher of any material or information, and has no right to edit or censor the material at the server level in use by the Client. The Company is not responsible nor pre-approves any of the Client’s web site content. All material submitted by Client for publication will be considered publicly accessible. The Company’s publication of material submitted by Client does not create any express or implied approval by the Company of such material, nor does it indicate that such material complies with the terms of this Agreement.
The Company cannot and does not take any responsibility for the security of information transmitted over the Company's facilities. Additional details on privacy and the Company's use of Client information can be found in the Company's Privacy Statement located at: http://www.9thnode.com/legal/privacy.html
The Client represents that it has the power and authority to enter into the Agreement and that in using the Services it will comply with this Agreement, any applicable legislation or license and, in particular, applicable data protection legislation.
The Client is responsible in all respects for the content of the client Web Site and hereby asserts that the pages displayed on the Client web site do not and will not violate any applicable law or the trademark, copyright, or other intellectual property rights of any third party, and that it shall at all times comply with the Conditions, the provisions of which are hereby incorporated into the agreement as if the same were set out in these conditions.
The Client is responsible for keeping all identification details, password details and other confidential information relating to the Services safe and secure and will notify the Company immediately of any unauthorized use of the services or any breach of security, loss, theft or disclosure of and identification details, password details or confidential information.
The Client shall obtain and be responsible for obtaining and complying with all necessary permissions or consents in respect of any works that it includes on the pages of the Client web site. In addition, the Client warrants to the Company that by using the services and by hosting the Client web site, neither the Client nor the Company respectively will be infringing any third party intellectual property rights.
When submitting an order, the Client shall provide the Company with current contact information including and not limited to the full name, street address, email address, and telephone number where the service will be received. The Client must keep the Company advised of any other relevant contact details (including email addresses) which may be necessary in order that the Company can easily notify the Client of information concerning the Services.
Other than where, as part of the Services, the Company has agreed to provide Back-up Services, the Client is responsible for back-up of its own files. The Client shall be responsible for maintaining their data and will not hold the Company accountable for any data loss.
THE COMPANY SERVERS MAY BE USED FOR LAWFUL PURPOSES ONLY. THE CLIENT UNDERTAKES AND WARRANTS TO THE COMPANY THAT IT WILL ONLY USE THE ASSIGNED WEB SPACE FOR LAWFUL PURPOSES. TRANSMISSION, STORAGE, OR DISTRIBUTION OF ANY INFORMATION, DATA, OR MATERIAL IN VIOLATION OF ANY APPLICABLE LAW OR REGULATION, OR THAT MAY DIRECTLY FACILITATE THE VIOLATION OF ANY PARTICULAR LAW OR REGULATION IS PROHIBITED. THIS INCLUDES, BUT IS NOT LIMITED TO: COPYRIGHTED MATERIAL; TRADEMARKS; TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS USED WITHOUT PROPER AUTHORIZATION; MATERIAL THAT IS OBSCENE, DEFAMATORY, CONSTITUTES AN ILLEGAL THREAT, OR VIOLATES EXPORT CONTROL LAWS. ADDITIONALLY, IN PURCHASING THE COMPANY'S SERVICES, ALL THE COMPANY'S CLIENTS CERTIFY THAT THEY AND/OR THE ORGANIZATION THEY REPRESENT IN PROCURING SERVICES FROM THE COMPANY ARE NOT, NOR HAVE BEEN DESIGNATED, A SUSPECTED TERRORIST AS DEFINED IN EXECUTIVE ORDER 13224; ARE NOT OWNED OR CONTROLLED BY A 'SUSPECTED TERRORIST' AS DEFINED IN EXECUTIVE ORDER 13224; AND ARE NOT ON, ARE NOT A MEMBER OF, RELATED TO, ASSOCIATED WITH, OR CONTROLLED BY ANY ORGANIZATIONS ON THE LIST CONTAINED IN THE ANNEX TO EXECUTIVE ORDER 13224 AND ALL UPDATES THERETO.
Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to the Company's clients. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a web site hosted on the company's server(s), and selling or distributing software (on a web site residing on the Company's server(s)) that facilitates spamming. Violators will face an immediate $300.00 penalty and a service suspension. The Company reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation, the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a news group posting.
Clients may not install any type of chat protocols, including but not limited to IRC, AIM, MSN or any other means of Instant Messaging services, on the Company's Shared-Server services. It is the sole responsibility of the client to honor this policy.
Unless specifically indicated the Company will not be held accountable for the upkeep of Virtual-Private Servers (VPS) and Dedicated Servers, unless the client has agreed.
If a client turns his functioning VPS into an nonfunctional VPS by installing or modifying the VPS from its original state (how it was first provided) the client will be responsible for the upkeep and functionality of the VPS. If the client is unable to resolve the issue himself he may contact the company for basic troubleshooting assistance. If the VPS is deemed unfixable by the client and the company, the VPS can be rebuilt (back to its original state, when it was first issued) for a set fee of $50.00 by the company.
Use of the Company's services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any Client to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Company's services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
All the Company's Clients are subject to the requirements of the Digital Millennium Copyright Act (“DMCA”). The DMCA sets forth the law regarding the use of copyrighted materials on the Internet. Individuals or entities submitting notifications of copyright infringement by the Company's Client (per the DMCA) to the Company must follow the below procedures. Copyright infringement notifications submitted to the Company according to these procedures will be processed within 21 days of receipt. Clients who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at the Company's sole discretion.
DMCA Copyright Infringement Notification Requirements:
Email correspondence pertaining to DMCA issues can be held by emailing: [email protected]
The Company shall use reasonable endeavors to perform the services and shall, as soon as reasonably practicable following receipt of an Order, provide the Client with a user identification, password for the web space and web site support toll-free and tolled number. The Company accepts no liability in respect of any loss incurred as a result of disclosure of the Clients' password.
The Company gives no warranty that access to its Server(s) and the Client’s web site shall be uninterrupted or error-free. For the avoidance of doubt, any standards relating to the availability of the Services contained in the standards of service are targets. While the Company shall use reasonable endeavors to achieve the targets, any failure by the Company to achieve the targets shall not constitute a breach of contract. The Company accepts no liability for any loss whatsoever suffered by the Client, in the event that the services are interrupted, are not error free or if the Company fails to achieve any targets as set out in the standards of service.
During the term of the agreement, the Company shall make available to the Client the web statistics. The Company shall use reasonable endeavors to ensure that the web statistics are accurate but the Company accepts no liability for any loss whatsoever, suffered by the Client, as a result of its reliance on the content of the web statistics.
By submitting an order the Client provides the Company with certain personal information or data. It is the responsibility of the Client to keep the personal data provided to the Company up to date. The Company will comply with all applicable data protection legislation. Any personal data will not be passed to third parties without the prior consent of the Client other than as set out below. If the Client breaches the Agreement or otherwise jeopardizes or compromises the integrity of the Company's network, the Company may take whatever steps it considers appropriate, to investigate and resolve any such matter. Without limitation, the Client authorizes the Company to use the Client's personal data and other information relating to the use of the Services in connection with any such investigation, including by disclosing it to any third party which has a legitimate interest in any such investigation or outcome.
The Client may be subject to a standard credit check. The information that the Client provides may be disclosed to a licensed credit reference agency which will retain a record of the search, and the Client authorizes the Company to make such disclosures.
When submitting an order, the Client will select the type of services which it requires and in particular the Client will specify, from the available options, the level of Web Space sought. Depending on the type of Services selected and in line with the amount of web space required the Client will also be subject to an appropriate web space limit, data Transfer Limit and in certain circumstances a database capacity limit ("the limits"). In the event that the Client, during the term, exceeds its allocated limits, the Company will be entitled to do the following:
Where the Client is exceeding any one of the limits the Company shall inform the Client of this by email ("Initial Email"). The Initial Email shall request that the Client rectify the situation by either complying with the Limits or by requesting an upgrade within a period of 7 (seven) days from the date of the Initial Email. In the event that the Client fails to request an upgrade and continues to exceed any one of the limits at the end of the 7 day period, the Company may automatically apply an upgrade to the Client's Services at the Company. Such upgrade will occur no sooner than 7 days following the date of the Initial Email. Once an upgrade has been completed, the Client will be liable to pay any additional Fees to the Company as applicable as stated in the billing policy.
Where the Client is exceeding either the web space limit or the database capacity limit, the Company shall be entitled to limit the account. The Client will be notified of such limitations by email. Following such limitation, the Client shall contact the Company to advise whether it wishes to request an upgrade or remedy the situation by complying with either the web Space Limit or Database Capacity limit. During any such period of limit and for the remainder of the term, the Client will be liable to pay to the Company all Fees due.
The Client understands and agrees that allotted bandwidth applies only towards website content. Website content defined as; php, html and other reasonable sized content.
The company strongly prohibits storage of content that is not "web" related. Excessive usage of hosting accounts for purposes such as; Anime, Manga, Movies, MP3, Torrents and/or File Downloads, will result in account suspension or termination.
The client may not use the companies shared hosting accounts for upload sites. Upload sites cause stress on the servers, which can result in issues (such as service failure(s)) for other clients. If a client seeks an upload site (such as imageshack.com), then client will need to use a Dedicated Server or a similar type of service, where he / she is isolated from other clients on the server.
The Client shall pay to the Company the Fees on either monthly (1 month) or annual (12 months) basis, using one of the methods as specified in the order form and in the billing policy. Payment will be due on the date as specified on the invoice or in the case of payment by credit card or direct debit, such date as advised to the Client by the Company ("Anniversary Date").
All charges of the Company are exclusive of any taxes, for which the Client shall be additionally liable at the applicable rate from time to time. If any federal, state or local governmental entity with taxing authority over the services provided under this agreement imposes a tax directly on the services provided by provider to Client under this agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Provider may pass the direct amount of such cost on to Client, and Client shall promptly pay such cost.
If payment is not made on the Anniversary Date, the Company shall be entitled, without limiting any other rights it may have, to charge a 10% late fee to the outstanding amount. The Company shall also be entitled to recover all of its costs of collection including, but not limited to, attorneys Fees. The Company shall be entitled to review the Fees, from time to time, and shall notify the Client of any increase in the Fees. Following such notification, the Client shall be entitled, within 7 days of such notification, to terminate the Agreement with immediate effect. Any use of the Services by the Client following such notification will deemed to be acceptance of the new Fees and will act as a waiver of the Client's right to terminate.
In the event that any additional / Extended Services are provided to the Client, the Client shall be obliged to pay any increased Fees which shall be applied from the date that such Extended / Additional services are provided.
Where the service includes registration of one or more domain names, the Client agrees to be subject to the Company's Domain Names Registration Service Conditions of Use. Throughout the course of Service rendered to Client by the Company, Client will remain the full owner and controlling entity for the Client's established domain name. Registration and modification of domain name status, including name server location, is handled by independent domain name registrars. The Company reserves the right to amend and/or update the Domain Names Registration Service Conditions of Use from time to time. A copy of the current version of the Domain Names Registration Service Conditions of use is available on the Company's web site.
Where the service includes the web commerce service, the Client agrees to be subject to the Company's web commerce service terms and conditions. The Company reserves the right to amend and/or update the Web Commerce Service Terms and Conditions from time to time. A copy of the current version of the web commerce service terms and conditions is available on the company's web site.
In the event that the Client's web site is in breach of the Conditions or the Company for whatever reason decides it is necessary or in its best interests to do so (including if the Client is in breach of its obligations or fails to pay the Fees) the Company shall be entitled to suspend or bar access to the Client's web site until any breach is remedied or the Clients pays any outstanding Fees or for such reasonable period as the Company considers fit; and remove all or any part of the Client's Web Site from the company's server and/or delete all or any data, files or other information that is stored on the Server on which the Client's web site is stored.
During the term of the agreement, the Company reserves the right (in its sole discretion and without prior notice) to suspend use by the Clients of any component part of the service which may be having a detrimental effect on the Services or/and on the network as a whole or adversely affect other the Company’s Clients.
The Company does not give any warranty, guarantee or other term as to the quality, fitness for purpose or otherwise of any goods or other services supplied by a third party, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods or services to the Company.
THE COMPANY SHALL HAVE NO LIABILITY TO THE CLIENT FOR ANY LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION ARISING FROM ANY EXERCISE OF THE COMPANY'S RIGHTS OR REMEDIES UNDER THE AGREEMENT INCLUDING WITHOUT LIMITATION:- (1) THE SUSPENSION OF ACCESS TO THE CLIENT'S WEBSITE (2) THE DELETION, CORRUPTION, LOSS OR REMOVAL OF DATA, FILES OR MATERIAL STORED ON THE CLIENT'S WEBSITE (3) THE REMOVAL OF THE CLIENT'S WEB SITE FROM THE SERVER; (4) ANY ACTIONS TAKEN BY THE COMPANY ON INSTRUCTIONS SUPPLIED BY THE CLIENT WHICH ARE INCOMPLETE, INCORRECT, INACCURATE, ILLEGIBLE, OUT OF SEQUENCE OR IN THE WRONG FORM, OR ARISING FROM THEIR LATE ARRIVAL OR NON-ARRIVAL; OR (5) ANY OTHER FAULT OF THE CLIENT (6) LOSS OR DESTRUCTION OF DATA FROM THE USE OF EMAIL AS PART OF THE SERVICES.
The Company’s clients agree to protect, defend, hold harmless, and indemnify the Company, any third party entity related to the Company (including, without limitation, third party vendors), and the Company’s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries with the same parent company as the Company, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal Fees and expenses, arising out of or resulting in any from the client's use of the Company’s services.
To the maximum extent permitted by applicable law, in no event, and under no theory of law or equity, will the Company (including, without limitation, the Company’s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, co-subsidiaries with the same parent company as the Company affiliates, third-party providers, merchants, licensors, or the like) or anyone else involved in creating, producing, or distributing the Company’s services, be liable for the loss of a domain name, or any business or personal loss, revenues decrease, expenses increase, costs of substitute products and/or the company services, or any other loss or damage whatsoever, or for any consequential, special, incidental, punitive or indirect damages of any kind arising out of any use of, or any inability to use, any of the Company’s services even if the Company has been advised of the possibility of such damages. The Company’s total cumulative liability, if any, to client, or any third party, for any and all damages, related to the Conditions, the Company’s services, including, without limitation, those from any negligence, any act or omission by the Company or the Company’s representatives, or under any other theory of law or equity, will be limited to, and will not exceed, the actual dollar amount paid by the Client for the Services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
The Agreement shall continue in force for the Term provided that the Client shall be entitled to terminate the agreement at any time after the minimum period of which they have signed up for by giving to the Company not less than 7 days written notice of termination, using the cancellation form inside of Client's billing area.
Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if that other party commits any breach of any of the provisions of the agreement and, in the case of a breach capable of remedy, fails to remedy the same within thirty days after receipt of a written notice giving particulars of the breach requiring to be remedied; or an encumbrance takes possession or a receiver is appointed over any of the property or assets of that other party; that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; that other party goes into liquidation or becomes bankrupt; the other party ceases or threatens to cease to carry on business or anything analogous to the foregoing under the law of any applicable jurisdiction occurs in relation to that other party.
Upon termination of the agreement for whatever reason, the Company shall delete all of the Client’s data from its Server without any liability whatsoever.
Termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision on or after such termination.
Upon termination of the agreement for whatever reason all due or outstanding Fees and expenses owed by the Client to the Company shall forthwith become due and payable, unless otherwise indicated in the Billing Policy.
The client understands that if he / she has purchased a domain via the company, and are canceling the account prior to the completion of one (1) year of service. That the company has the right to charge the customer; $10.00 for the domain name, and refund the residual funds in the account.
The client understands that if he / she has requested a "Transfer Request" where files are moved for the customer by the company that the company will charge $50.00 for the transfer of files if the client decides to terminate before the end of their anniversary date.
The client understands that violation of any provision of this TOS (Terms of Service) agreement will waive the refund policy and possible future service.
The Client must not:
This agreement constitutes the entire agreement between the parties as to the subject matter of the agreement and supersedes all prior oral or written agreements, understandings or arrangements between them relating to the provision of the Services.
The Company shall not be liable to the Client for any loss arising from or in connection with any representations or undertakings made prior to the Agreement Date, unless fraudulent.
If any provision of the agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
The Client shall not be entitled to sell, lease, sub-license, assign or transfer the Agreement nor all or any of its rights and obligations hereunder without the prior written consent of the Company.
The Company reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the client's consent.
The waiver by either party of a breach or default of any of the provisions of the Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
In the event of there being a conflict between the terms of these Conditions and the terms of a separate Web Hosting Agreement entered into by the Company and the Client the separate Web Hosting Agreement shall take precedence. Where an order has been submitted online, in the event of a conflict between the terms of the acceptance email and the terms of the Order Form, the Order Form shall take precedence.
Nothing in this agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between the Company and its Clients. Each of the Company and its Clients will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
The Company will not be liable for delays in its performance of the Agreement or the Company services caused by circumstances beyond the Company’s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). The Company will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of Clients for the payment of money due.
Any waiver, modification, or amendment of any provision of the Conditions or other agreement for the companies services, initiated by a Client, will be effective only if accepted in writing and signed by an authorized representative of the Company.
The client understands that account downgrades are charged at $10 per downgrade. This $10 fee is non-refundable and is paid as an account administration fee.
The client who has purchased Reseller hosting is responsible for support their customers. The company does not provide support to our Reseller’s Customers. If Reseller’s customers contact the company, the company reserves the right to place the client account on hold until the reseller can assume their responsibility for the customer. All support requests must be made by the reseller on their clients' behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their clients'. The company will hold any reseller responsible for any of the customer’s actions that violate the terms of service or law.
The client understands that the company will not be responsible for moving existing reseller’s customer accounts from other providers to the company. If a reseller needs this service the company can provide it at an additional fee, for more information please contact the support department.
All communications with respect to the agreement shall be in English and in the case of a notice addressed to the Company, shall be delivered by hand or sent by first-class post to the Company at its registered office address. In the case of a notice addressed to the Client, it shall be delivered to such address as provided to the Company by the Client by first class post, by facsimile transmission or sent by electronic mail. Communications shall be deemed to have been received within two business days (if sent by first-class mail) and on the day on which a facsimile transmission or electronic mail is sent or on the date of service in respect of a notice delivered by hand.
The Client understands that company will collect information relevant to the hosting purchase. The client also understands that the company will fraud screen every order to ensure it is a valid hosting purchase. The company will be the sole arbitrator that decides if order is accepted or not. During the checkout process the client understands that the company has the right to record the clients IP address and any other vital information that is needed to ensure a successful order is placed.
The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. The Company and the Client hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Illinois. Venue for any legal proceedings hereunder shall be in the court of jurisdiction in either the County of Cook, Illinois. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys' fees and costs that the prevailing party incurred prior to commencing the proceeding.
Wherever in this Agreement the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the agreement into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the agreement. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the Agreement