Plb Designs Hosting provides
its customers (also known as subscribers) with web hosting services.
Plb Designs Hosting acknowledges and respects that the Internet is
a medium for free and open discussion and interpretation of information,
however, when there are conflicting or legal issues, Plb Designs Hosting
may take corrective actions to resolve these issues. In order to stop
these issues occurring, Plb Designs Hosting has an Acceptable Use Policy
("AUP"), which details terms that the customer is bound to
while using our services. This AUP can and will be revised at any time.
If a customer continues using Plb Designs Hosting services after this
AUP is modified, it signifies to Plb Designs Hosting your agreement
with these terms.
As the internet cannot be monitored, it is possible for Plb Designs
Hosting
customers to use our services in a way which could offend or injure them.
Plb Designs Hosting is not responsible for any injury or offense caused
by using our services.
Internet users must remember
that they are bound by many laws regarding use of the internet. Plb
Designs Hosting customers are no exceptions. Any illegal activities
or activities that break the terms of this AUP may face criminal and
legal action and/or account termination. Some activities prohibited
on our servers are listed below:
This Web Hosting Agreement (this “Agreement”)
is between Plb Designs Hosting, a web hosting provider, formed under
the laws of the State of Indiana. Its principal office at 26841
Edwards Rd, Elkhart, IN 46514 USA and the person (individual or legal
person) who applies and signs a digital Plb Designs Hosting service order
and set up form (the “Order”) incorporating this Agreement
by reference (“Customer”). This Agreement governs Customer’s
use of Plb Designs Hosting Web hosting service. Plb Designs Hosting reserves
the right to amend or change these Rules and Regulations at any time
and without prior notice.
1. Services. Subject to the terms of this
Agreement, and contingent on Customer’s satisfaction of Plb Designs
Hosting credit approval requirements, Plb Designs Hosting agrees
to provide the web hosting services described in the Order for the
fees stated in the Order. Furthermore Plb Designs Hosting reserves
the right to refuse service to any past, present or future client at
our sole discretion.
2. Term. The initial service term
of the Agreement shall begin on the date that Plb Designs Hosting generates
an e-mail message to Customer announcing the activation of the Customer’s
account (the
“Service Commencement Date”) and shall continue for the number
of months stated in the Order (the “Initial Term”). Upon
expiration of the Initial Term, this Agreement shall automatically renew
for the same length as the Initial Term (each a “Renewal Term”)
unless Plb Designs Hosting or Customer provides the other with written
notice of non-renewal at least seven (7) days prior to the expiration
of the Initial Term or then-current Renewal Term, as applicable unless
a violation has occurred at which time Plb Designs Hosting has the right
to terminate any agreement at their sole discretion. The Initial Term
and any Renewal Term may be referred to collectively in this Agreement
as the “Term.”
(a) Fees. Fees
are payable in advance on the first day of each billing cycle. Customer’s
billing cycle shall be monthly or quarterly as indicated on the Order,
beginning on the Service Commencement Date. Plb Designs Hosting may
require payment for the first billing cycle before beginning service.
If the Order provides for credit/debit card billing, Customer authorizes
Plb Designs Hosting to bill subsequent fees to the credit/debit card
on or after the first day of each successive billing cycle during
the Term of this Agreement; otherwise Plb Designs Hosting will invoice
Customer via electronic mail to the Primary Customer Contact listed
on the Order. Invoiced fees may be issued on or before the 1st day
of each billing cycle, and the fees shall be due on the 3rd day following
invoice date, but in no event earlier than the first day of each
billing cycle. Payments must be made in United States dollars.
Customer is responsible for providing Plb Designs Hosting with
changes to billing information (such as credit card expiration, change
in billing address). Plb Designs Hosting may suspend the service without
notice if payment for the service is overdue. Fees not disputed within
sixty (30) days of due date are conclusively deemed accurate. Customer
agrees to pay Plb Designs Hosting reasonable reinstatement fee ($25.00)
following a suspension of service for non-payment that exceed 24 hours,
and the additional fee of ($15.00) following a continued suspension
of 7 + days and to pay Plb Designs Hosting reasonable costs of collection
of overdue amounts, including collection agency fees, attorney fees and
court costs.
(b) Fee
Increases. Plb Designs Hosting may increase its fees
for services effective the first day of a Renewal Term by giving notice
to Customer of the new fees at least thirty (30) days prior to the
beginning of the Renewal Term, and if Customer does not give a notice
of non-renewal as provided in Section 2 above, the Customer shall be
deemed to have accepted the new fee for that Renewal Term and any subsequent
Renewal Terms (unless the fees are increased in the same manner for a
subsequent Renewal Term).
c) Taxes. At
Plb Designs Hosting does not charge any tax on hosting services.
(d) Early
Termination.Customer acknowledges
that the amount of the fee for the service is based on Customer’s
agreement to pay the fee for the entire Initial Term, or Renewal Term,
as applicable. In the event Plb Designs Hosting terminates the Agreement
for Customer’s breach of the Agreement in accordance with Section
9 (Termination), or Customer terminates the service other than in accordance
with Section 9 (Termination) for Plb Designs Hosting breach, the unpaid
fees for each billing cycle remaining in the Initial Term or then-current
Renewal Term, as applicable, are due on the business day following termination
of the Agreement.
(e) Refunds. Our money back guarantee is valid for two situations. (1) If
we fail to produce our 99.5% uptime and you choose to cancel your account
with in 15 days of activation you are able to receive your money back.
(2) If you think we failed to support you during your
15 days or less time with us, we will fully refund you. You must supply
valid reasons as well. You will not receive your money back if you are not
valid for the guarantee. If you suddenly decide that you don't want
hosting anymore that will not get you your refund; you paid for your
month of hosting and can use it as you wish.
(f) Reinstatement
fees.You will incur a $25.00
charge when the following happens: You either receive a generated
invoice automatically from the billing system or we manually send you
an invoice from the billing system. This can range from 2 days
prior to your account being due to the date it is due. It is your responsibility
to ensure that you pay your invoice whether it be via a subscription
through Pay Pal or manually pay it through Pay Pal. It is not
our responsibility to chase it down. We use a professional Billing
Account that invoices you and we know when you receive an invoice as
I get a CC copy of it. I also know when your monies post to the ledger
as I dispatch a paid invoice statement to you. Pay
attention to your invoices and your email. Failure
to pay your invoice falls on your shoulders. Not ours.
If your account is not paid and/or your
credit card is declined the following day (1 day past due) your
account is placed on suspension mode. You will be required to pay a
re-activation fee of $25 if your account remains suspended for more
than 24 hours. This activation fee must be paid before your account
is re-activated regardless if you pay your invoice.
If your account remains in the suspended mode for 7 days you will
incur an additional $15.00 service fee. This is on top of the
$25 you were previously charged. As you see it can get very
expensive to let your account lapse.
It is better to email us with an explanation of why your invoice
is not paid rather than be an ostrich and stick your head in the
sand, or assume we know why. If your account remains suspended
for more than 10 days we will remove your account (including all
files) from our servers. Plb Designs Hosting is not responsible
for the loss of clients files as described in section 12 (Back
up Copy).
(g) Bandwidth. Effective
January 2002 - all bandwidth which has been used over and above your
allotted given amount with your package will be charged an extra $5.00
per Gig. I will keep you advised of any problems that may crop up to
keep you from going over your allotted bandwidth, as well as having
the server dispatch a letter to you stating you have used 70%, 80%
of your bandwidth. At that time it will be necessary for you to upgrade
your package, or subscribe to additional bandwidth at $5.00 per Gig.
4. Law/AUP. Customer agrees to use the service in compliance
“AUP”), which is hereby incorporated by reference in this
Agreement. Customer agrees that Plb Designs Hosting may, in its reasonable
commercial judgment consistent with industry standards, amend the AUP
from time to time to further detail or describe reasonable restrictions
and conditions on Customer’s use of the Services. Amendments to
the AUP are effective on the earlier of Plb Designs Hosting notice
to Customer that an amendment has been made, or the first day of any
Renewal Term that begins subsequent to the amendment. Customer agrees
to cooperate with Plb Designs Hosting reasonable investigation of any
suspected violation of the AUP. In the event of a dispute between Plb
Designs Hosting and Customer regarding the interpretation of the AUP,
Plb Designs Hosting commercially reasonable interpretation of the AUP
shall govern.
5. Customer
Information. Customer represents and warrants to Plb Designs Hosting that the information
he, she or it has provided and will provide to Plb Designs Hosting
for purposes of establishing and maintaining the service is accurate.
If Customer is an individual, Customer represents and warrants to Plb
Designs Hosting that he or she is at least 18 years of age. Plb Designs
Hosting may rely on the instructions of the person listed as the Primary
Customer Contact on the Order with regard to Customer’s account
until Customer has provided a written notice changing the Primary Customer
Contract.
6. Indemnification. Customer agrees to indemnify and hold harmless Plb Designs Hosting, Plb
Designs Hosting affiliates, and each of their respective officers,
directors, agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties, fines,
punitive damages, amounts in interest, expenses and disbursements of
any kind and nature whatsoever (including reasonable attorneys fees)
brought by a third party under any theory of legal liability arising
out of or related to the actual or alleged use of Customer’s
services in violation of applicable law or the AUP by Customer or any
person using Customer’s log on information, regardless of whether
such person has been authorized to use the services by Customer.
7. Disclaimer
of Warranties. PLB DESIGNS HOSTING DOES NOT WARRANT OR REPRESENT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW PLB DESIGNS HOSTING DISCLAIMS
ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN
“AS IS” BASIS.
8. Limitation
of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED
BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT,
EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY
OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE
CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF PLB DESIGNS HOSTING AND
ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING
BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE
A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE
MONTHS OF SERVICE.
(a) Suspension. Customer
agrees that Plb Designs Hosting may suspend services to Customer without
notice and without liability if: (i) Plb Designs Hosting
reasonably believes that the services are being used in violation of
the AUP;
(ii) Customer fails to cooperate with any reasonable
investigation of any suspected violation of the AUP;
(iii) Plb
Designs Hosting reasonably believes that the suspension of service is
necessary to protect its network or its other customers;
(iv) to
investigate an abuse report, or
(v) as requested by
a law enforcement or regulatory agency. Customer shall pay Plb Designs
Hosting reasonable reinstatement fee if service is reinstated following
a suspension of service under this subsection.
(b) Termination. The
Agreement may be terminated by Customer prior to the expiration of the
Initial Term or any Renewal Term without further notice and without liability
if Plb Designs Hosting fails in a material way to provide the service
in accordance with the terms of the Agreement and does not cure the failure
within seven (7) days of Customer’s written notice describing the
failure in reasonable detail. The Agreement may be terminated by Plb
Designs Hosting prior to the expiration of the Initial Term or any Renewal
Term without further notice and without liability as follows:
(i) upon
seven (7) days notice if Customer is overdue on the payment of any amount
due under the Agreement;
(ii) Customer materially violates
any other provision of the Agreement, including the AUP, and fails to
cure the violation within one (1) day of a written notice from Plb Designs
Hosting describing the violation in reasonable detail;
(iii) upon
one (1) day notice if Customer’s Service is used in violation of
a material term of the AUP more than once, or
(iv) upon
one (1) days notice if Customer violates Section 5 (Customer Information)
of this Agreement. Either party may terminate this agreement upon seven
(7) days advance notice if the other party admits insolvency, makes an
assignment for the benefit of its creditors, files for bankruptcy or
similar protection, is unable to pay debts as they become due, has a
trustee or receiver appointed over all or a substantial portion of its
assets, or enters into an agreement for the extension or readjustment
of all or substantially all of its obligations
(c) DNS Resolver. All
accounts are monitored 24 hours a day to insure your DNS resolves to
our servers. Upon activation of your account on our servers you have
five (5) days to update your DNS (Name servers) to the information provided
in the initial welcome e-mail. If such actions are not taken your account
on the seventh (7th) day will be placed in suspension mode unless prior to
the seventh (7th) day we are notified why the DNS can not be updated. Any
account that becomes unresolved from our servers after the initial DNS
has resolved will be suspended immediately. Our temporary account
URL provided upon account activation may only be used for the first 7
days once the account has been activated. Failure to discontinue use
will result in account suspension.
If your account remains in the suspended mode for more than 7 days we
will remove your account (including all files) from our servers. Plb
Designs Hosting is not responsible for the lose of clients files as described
in section 12 (Back up Copy).
(a) Content. Pornography
and sex-related merchandising is prohibited on all our servers. This
includes sites that may infer sexual content, or links to adult content
elsewhere. Plb Designs Hosting will be the sole arbiter in determining
violations of this provision. Also prohibited are sites that promote
any illegal activity or present content that may be damaging our servers
or any other server on the internet. Links to such materials are also
prohibited. Storage within your account of such items are also not acceptable.
Examples of unacceptable content or links: Pirated software, hacker programs
or archives, warez sites. Mere possession of any scripts related to hacking,
sniffing, pishing,or smurfing will lead to an effort on our part to track your
destination and prosecute to the full extent of the law
(b) Illegal
Use. Plb Designs Hosting servers may be used for lawful
purposes only. 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. Examples of unacceptable
content or links include: pirated software, hacker programs or archives,
Warez sites, MP3, and IRC bots.
(c) Tortuous
Conduct. No one shall post unlawful or defamatory information
about a person without their consent, intentionally inflicting emotional
distress, or violating trademarks, copyrights, or other intellectual
property rights.
(d) IRC. IRC
or IRC bots are sticky forbidden on any of Plb Designs Hosting servers.
(e) Resources. Resources
are defined as bandwidth, memory and/or processor utilization. A web
site is considered using "Excessive amounts of resources" when
it monopolies the resources available using 10% or more of system resources
for longer than 60 seconds. There are numerous problems that could cause
such problems, this includes: scripts, FTP, HTTP, etc. A site that consumes
over the account limit of bandwidth is also considered "excessive
resources". This policy is only implemented in extreme circumstances
and is intended to prevent the misuse of our servers. The client whom
is using
"excessive resources" will be asked to upgrade his/her package
to one of our dedicated server packages or switch web hosting providers.
Plb Designs Hosting, LLC will be the sole and final arbiter as to what
constitutes a violation of this policy.
(f) Child
Pornography. Company will cooperate fully with any criminal
investigation into a Customer's violation of the Child Protection Act
of 1984 concerning child pornography. Customers are ultimately responsible
for the actions of their client over Company network, and will be liable
for illegal material posted by their clients.
According to the Child Protection Act, child pornography includes photographs,
films, video or any other type of visual presentation that shows a person
who is or is depicted as being under the age of eighteen years and is
engaged in or is depicted as engaged in explicit sexual activity, or
the dominant characteristic of which is the depiction, for a sexual purpose,
of a sexual organ or the anal region of a person under the age of eighteen
years or any written material or visual representation that advocates
or counsels sexual activity with a person under the age of eighteen years.
Violations of the Child Protection Act should be reported to the U.S.
Customs Agency at 1-800-BEALERT.
(g) File
Hosting. File hosting is strictly prohibited on any and
all servers within Plb Designs Hosting network. Our services are strictly
offered for web site hosting only.
(h) Torrent. Bit
Torrent seeders, trackers and .torrent files are not allowed on any Plb
Designs Hosting servers.
10. Guarantee
Uptime. The target up-time for primary services is 99.5% each month. The service
level guarantee will be measured by Plb Designs Hosting and is based
on the up-time. If Plb Designs Hosting determines that primary services
were unavailable for period exceeding the maximum allowable under the
prescribed up-time target, and extending for a continuous duration
of 1 hour or more per instance, upon the customers request, Plb Designs
Hosting will credit the customers monthly invoice the prorated charges
of one (1) day of the Plb Designs Hosting services fee for each consecutive
hour, up to a maximum of 5 days per month. To receive credit if this
guarantee has not been met, the customer must contact Plb Designs Hosting
within 15 days of the end of the month for which credit is requested
(i) report to the appropriate authorities any conduct by Customer or
any of Customer’s customers or end users that Plb Designs Hosting
believes violates applicable law, and
(ii) provide any information
that it has about Customer or any of its customers or end users in
response to a formal or informal request from a law enforcement or
regulatory agency or in response to a formal request in a civil action
that on its face meets the requirements for such a request.
12. Back Up
Copy. Customer agrees to maintain a current copy of all content hosted by Plb
Designs Hosting notwithstanding any agreement by Plb Designs Hosting
to provide back up services. We do an off site backup once a week but
that is generally it as we feel you are responsible for your own files.
13. Changes to Plb
Designs Hosting Network. Upgrades and other changes in Plb Designs Hosting network, including,
but not limited to changes in its software, hardware, and service providers,
may affect the display or operation of Customer’s hosted content
and/or applications. Plb Designs Hosting reserves the right to change
its network in its commercially reasonable discretion, and Plb Designs
Hosting shall not be liable for any resulting harm to Customer.
14. Notices. Notices to Plb Designs Hosting under the Agreement shall be given
via electronic mail. Notices
to Customer shall be given via electronic mail to the individual listed
as the Primary Customer Contact on the Order. Notices are deemed received
on the day transmitted, or if that day is not a business day, on the
first business day following the day delivered. Customer may change
his, her or its notice address by a notice given in accordance with
this Section.
15. Force
Majeure.
Plb Designs Hosting shall not be in default of any obligation under
the Agreement if the failure to perform the obligation is due to
any event beyond Plb Designs Hosting control, including, without
limitation, significant failure of a portion of the power grid, significant
failure of the Internet, natural disaster, war, riot, insurrection,
epidemic, strikes or other organized labor action, terrorist activity,
or other events of a magnitude or type for which precautions are
not generally taken in the industry.
16. Governing
Law/Disputes. The Agreement shall be governed by the laws of the State of Indiana,
exclusive of its choice of law principles, and the laws of the United
States of America, as applicable. The Agreement shall not be governed
by the United Nations Convention on the International Sale of Goods.
EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE
AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN ELKHART COUNTY,
INDIANA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION
AND WAIVES ALL OBJECTIONS THERETO.
7. Miscellaneous. Each party acknowledges and agrees that the other party retains
exclusive ownership and rights in its trademarks, service marks,
trade secrets, inventions, copyrights, and other intellectual property.
Neither party may use the other party’s name or trade mark
without the other party’s prior written consent. The parties
intend for their relationship to be that of independent contractors
and not a partnership, joint venture, or employer/employee. Neither
party will represent itself to be agent of the other. Each party
acknowledges that it has no power or authority to bind the other
on any agreement and that it will not represent to any person that
it has such power or authority. This Agreement may be amended only
by a formal written agreement signed by both parties. The terms on
Customer’s purchase order or other business forms are not binding
on Plb Designs Hosting unless they are expressly incorporated into
a formal written agreement signed by both parties. A party’s
failure or delay in enforcing any provision of the Agreement will
not be deemed a waiver of that party’s rights with respect
to that provision or any other provision of the Agreement. A party’s
waiver of any of its right under the Agreement is not a waiver of
any of its other rights with respect to a prior, contemporaneous
or future occurrence, whether similar in nature or not. The captions
in the Agreement are not part of the Agreement, but are for the convenience
of the parties. The following provisions will survive expiration
or termination of the Agreement: Fees, indemnity obligations, provisions
limiting liability and disclaiming warranties, provisions regarding
ownership of intellectual property, these miscellaneous provisions,
and other provisions that by their nature are intended to survive
termination of the Agreement. There are no third party beneficiaries
to the Agreement. Neither insurers nor the customers of resellers
are third party beneficiaries to the Agreement. Customer may not
transfer the Agreement without Plb Designs Hosting prior written
consent. Plb Designs Hosting approval for assignment is contingent
on the assignee meeting Plb Designs Hosting credit approval criteria.
Plb Designs Hosting may assign the Agreement in whole or in part.
This Agreement together with the Order and "AUP" constitutes
the complete and exclusive agreement between the parties regarding
its subject matter and supersedes and replaces any prior understanding
or communication, written or oral.
Services