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. The TOU supersedes any other agreement with NetOptimal, whether written, oral, by conduct, or otherwise.
A. NetOptimal Web Hosting & Ecommerce Customer Restrictions
B. NetOptimal Dedicated Server Customer Restrictions
D. All NetOptimal Customer Billing Policy
A. NetOptimal Web Hosting & Ecommerce Customer Restrictions
Any Web site that uses a high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources) will be given the option to either pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a Dedicated Server plan. NetOptimal will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and Ecommerce accounts come with a limit of 5,000 files per account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of US$9.95/month. Any Web Hosting and Ecommerce account deemed to be adversely affecting server performance or network integrity will be shut down without prior notice.
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 NetOptimal's customers. 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 a NetOptimal server, and selling or distributing software (on a Web site residing on a NetOptimal server) that facilitates spamming. Violators will be assessed a minimum fine of $200 and will face immediate suspension. NetOptimal reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. NetOptimal does not permit CGI script sharing with domains not hosted by NetOptimal or any scripts that may be abused for UCE purposes.
NetOptimal does not allow Web Hosting and Ecommerce customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, NetOptimal provides Java chat rooms that meet most users' needs and run without hindering system performance.
Background Running Programs
NetOptimal may allow programs to run in the background. These programs will be considered on an individual basis and Web Hosting and Ecommerce customers will incur extra charges based on system resources used and operational maintenance needed. If you wish to run background programs please contact NetOptimal at support@NetOptimal.com so that we can arrange set-up.
NetOptimal does not allow IRC or IRC bots to be operated by Web Hosting and Ecommerce customers.
NetOptimal's Web Hosting and Ecommerce accounts are not configured for the purposes of distributing software and/or multimedia products. If you wish to distribute software and/or multimedia files, please contact sales@NetOptimal.com to make special arrangements.
Multimedia files are defined as any graphics, audio, and video files. NetOptimal Web Hosting and Ecommerce accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any Web site whose disk space usage for storing multimedia files exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be using an unusual amount of multimedia files
Any database stored on NetOptimal's Web Hosting and Ecommerce servers will be limited in size to 10% of the total disk space allotted for that particular domain's plan/web hosting account.
B. NetOptimal Dedicated Server Customer Restrictions
Customer Security Responsibilities
The customer is solely responsible for any breaches of security affecting servers under customer control. If a customer's server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's server and any other requirement affected by the security breach.
NetOptimal allows Dedicated Server customers the use of IRC inside the NetOptimal network as long as the use of IRC on a NetOptimal server does not violate any of the other terms of these TOU. As a policy, NetOptimal will not provide vanity IRC reverse DNS records. To enforce this policy NetOptimal does not turn the reverse address of IPs over to the customer. Authority over this information remains with NetOptimal.
Billing for Network Resources
The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.
NetOptimal's services include, but are not limited to:
any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting customers' account (including all billing data and the space on the particular Web server that NetOptimal provides to customers);
any use by customers, or any access provided to customers by NetOptimal, of computing, telecommunications, software, information, hardware, and equipment;
any act, or provision of any service, by NetOptimal to customers, related to Web hosting and domain name registrations (including server usage and technical support), regardless of duration and whether paid for or not;
any provision by NetOptimal to customers, of any space, Internet connectivity, or electrical power;
any access or use related to the NetOptimal's Web site, including the Web site itself;
any other service mentioned in the TOU;
any other service provided by NetOptimal to customers, whether used or not;
any other NetOptimal services that are used by customers, whether offered or provided by NetOptimal to customers.
Ownership of Web Site
The legal owner of customers' Web sites and accounts with NetOptimal will be the individual or organization whose name is listed in NetOptimal's database as the owner. Customers will fully cooperate with and abide by any and all of NetOptimal's security measures and procedures in the event of any dispute over ownership of customers' Web sites and accounts with NetOptimal.
NetOptimalservers 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. Additionally, in purchasing NetOptimal services, all NetOptimal customers certify that they and/or the organization they represent in procuring services from NetOptimal 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 NetOptimal's customers. 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 a NetOptimal server, and selling or distributing software (on a Web site residing on a NetOptimal server) that facilitates spamming. Violators will be assessed a minimum fine of US$200 and will face immediate suspension. NetOptimal reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
System and Network Abuse
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 newsgroup posting.
Viruses and Other Destructive Activities
Use of NetOptimal'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 customer 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 NetOptimal's services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. All NetOptimal customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a NetOptimal customer (per the DMCA) to NetOptimal must follow the below procedures. Copyright infringement notifications submitted to NetOptimal according to these procedures will be processed within 21 days of receipt. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at NetOptimal's sole discretion.
DMCA Copyright Infringement Notification Requirements
Signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant").
Identification of the copyrighted work(s) claimed to have been infringed.
Identification of the material claimed to infringe the copyright(s), and enough information for NetOptimal to locate it including URLs and specific descriptions of the infringing material at each URL.
The Claimant's name, address, and telephone number(s).
A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
Mail the notification to:
Legal Department - DMCA Complaints
2302 Highland Park Ln.
Campbell, CA 95008 USA
Pornography and sex-related merchandising are prohibited on NetOptimal servers. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites.
The use of NetOptimal's services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. NetOptimal is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services.
NetOptimal is concerned with the privacy of on-line communications and Web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, NetOptimal urges its customers to assume that all of their on-line communications are insecure. NetOptimal cannot take any responsibility for the security of information transmitted over NetOptimal's facilities. Additional details on privacy and NetOptimal's use of customer information can be found in NetOptimal's Privacy Statement.
Customers are required to use the NetOptimal network responsibly. This includes respecting the other customers of NetOptimal. NetOptimal reserves the right to suspend and/or cancel service with any customer who uses the NetOptimal network in such a way that adversely affects other NetOptimal customers. While NetOptimal may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, NetOptimal does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when NetOptimal becomes aware of any violation of the TOU or other user agreements, NetOptimal may take any action to stop or correct such violation, including, but not limited to, denying access to NetOptimal's services and equipment or to the Internet. In addition, NetOptimal may take action against a customer or a customer of such customer because of the activities of such customer. NetOptimal anticipates that customers who offer Internet services will cooperate with NetOptimal in any corrective or preventive action that NetOptimal deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of NetOptimal policy and NetOptimal reserves the right to take any such action even though such action may affect other customers of the NetOptimal customer.
Actions Taken by NetOptimal
The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. NetOptimal will be the sole arbiter as to what constitutes a violation of the TOU. NetOptimal reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When NetOptimal becomes aware of an alleged violation of its TOU, NetOptimal will initiate an investigation. During the investigation, NetOptimal may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, NetOptimal may, at its sole discretion, restrict, suspend, or terminate a customer's Web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, NetOptimal will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. NetOptimal does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by NetOptimal.
NetOptimal customers agree to protect, defend, hold harmless, and indemnify NetOptimal, any third party entity related to NetOptimal (including, without limitation, third party vendors), and NetOptimal's executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries with the same parent company as NetOptimal, 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 customer's use of NetOptimal's services.
The NetOptimal service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. NetOptimal expressly disclaims any representation or warranty that the NetOptimal service will be error-free, secure or uninterrupted. No oral advice or written information given by NetOptimal, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. NetOptimal and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.
Termination for Bankruptcy or Insolvency
If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, NetOptimal may immediately terminate provision of NetOptimal's services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against NetOptimal in such event.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL NETOPTIMAL (INCLUDING, WITHOUT LIMITATION, NETOPTIMAL'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, CO-SUBSIDIARIES WITH THE SAME PARENT COMPANY AS NETOPTIMAL, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING NETOPTIMAL'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 NETOPTIMAL 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 NETOPTIMAL SERVICES EVEN IF NETOPTIMAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETOPTIMAL'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR NETOPTIMAL'S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY NETOPTIMAL OR NETOPTIMAL'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 CUSTOMER 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.
NetOptimal may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with NetOptimal's services. Certain changes to NetOptimal's services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and NetOptimal is not liable, for any and all such personalized applications and content, except as expressly agreed to by NetOptimal.
Backup of Data
Except where NetOptimal has expressly agreed in writing to the contrary, customers are solely and entirely responsible, and NetOptimal is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that customers use in connection with NetOptimal services.
Third Party Licenses
NetOptimal makes a reasonable effort to provide customers with technologies, developments, and innovations (collectively "Technologies"), part of which may be licensed, or co-branded, from or by, third party entities. However, NetOptimal makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, NetOptimal specifically disclaims all warranties of merchantability and and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold NetOptimal liable in any way for the revocation of any license, which has been licensed to NetOptimal. The use of the Technologies obtained from or through NetOptimal, or any other referred third party, whether directly or indirectly, is at the sole risk of customers.
Any mention of non-NetOptimal products by NetOptimal, its employees, or any third party entity related to NetOptimal is for information purposes only and does not constitute an endorsement or recommendation by NetOptimal. NetOptimal disclaims any and all liabilities for any representation or warranty made by the vendors of such non-NetOptimal products or services.
NetOptimal's Intellectual Property
Customers will not, without NetOptimal's express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on NetOptimal's Web site, and customers will not use any of NetOptimal's trademarks, service marks, copyrighted materials, or other intellectual property without NetOptimal's express written consent. Customers will not, in any way, misrepresent their relationship with NetOptimal, attempt to pass themselves off as NetOptimal, or claim that customers are NetOptimal.
Customers may not assign or delegate their rights or obligations under the TOU or other agreement for NetOptimal's services, either in whole or in part, without the prior written consent of NetOptimal.
Minimum Age Requirement
NetOptimal customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a NetOptimal customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for NetOptimal services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains NetOptimal's express written consent to the contrary. Any acceptance of the TOU or any other agreement for NetOptimal's services will be deemed null and void to the extent that NetOptimal will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of NetOptimal's services.
Governing Law and Severability
The TOU, and any other agreement for NetOptimal services, will be governed by and construed in accordance with the laws of the State of California, USA without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and NetOptimal will take place in California, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other NetOptimal agreement is found by a court
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