GoMainSt - WebMart Terms of Service & Legal Disclosure
MWH-AUP/TOS-28MAR04
1. Introduction
This document (the “Agreement”) sets forth the principles, guidelines
and requirements of the Terms of Service of GoMainSt - WebMart International,
Inc. a Arizona incorporated company (the "Company") doing business
as GoMainSt - WebMart, governing the use by the customer ("Customer")
of Company's services and products ("Services and Products").
These Terms of Service have been created to promote the integrity, security,
reliability and privacy of Company's facilities, network, and Customer
data contained within. The Company believes it provides the best services
in the industry, and provides the following policies in the best interests
of the Company and the Company's clients. The Company retains the right
to modify these Terms of Service at any time and from time to time and
any such modification shall be automatically effective as to all customers
when adopted by Company and published here. Company shall be the sole
and final arbiter as the interpretation of the following. By utilizing
the Company's services and products, the Customer agrees to be bound
by the terms herein outlined. Questions or comments regarding this document
should be forwarded to the Company at the following address: brenta@gomainst.com.
2. Compliance with the Law
Customer shall not post, transmit, re-transmit or store material on or
through any of Services or Products which, in the sole judgment of the
Company (i) is in violation of any local, state, federal or non-United
States law or regulation, (ii) is threatening, obscene, indecent, defamatory
or that otherwise could adversely affect any individual, group or entity
(collectively, "Persons") or (iii) violates the rights of any
person, including rights protected by copyright, trade secret, patent
or other intellectual property or similar laws or regulations including,
but not limited to, the installation or distribution of "pirated" or
other software products that are not appropriately licensed for use by
Customer. The Customer agrees to indemnify and hold harmless the Company
from any claims resulting from the use of the services which damages
the Customer or any other party. Customer shall be responsible for determining
what laws or regulations are applicable to its use of the Services and
Products.
3. Prohibited Uses of Services and Products
In addition to the other requirements of these Terms of Service, Customer
may only use the Services and Products in a manner that, in the Company's
sole judgment, is consistent with the purposes of such Services and Products.
If Customer is unsure of whether any contemplated use or action is permitted,
please contact the Company as provided above. By way of example, and
not limitation, uses described below of the Services and Products are
expressly prohibited.
3.1. General
3.1.1. Pornography and pornographic related merchandising are
prohibited under all the Company's services. This includes sites
that include links to pornographic content elsewhere. Further examples
of unacceptable content or links include pirated software, "hacker" programs,
archives of "Warez Sites", game rooms or MUDs, IRC Bots,
Egg Drop programs, "Safe List" sites, FFA (Free For All)
sites, and any kind of illegal software or shareware. In addition,
sites offering online gambling, casino functionality, sportsbook
betting (including offshore), and internet lotteries are prohibited.
3.1.2. Violations of the rights of any Person protected by copyright,
trade secret, patent or other intellectual property or similar
laws or regulations, including, but not limited to, the installation
or distribution of "pirated" or other software products
that are not appropriately licensed for use by Customer.
3.1.3. Actions that restrict or inhibit any Person, whether a
customer of Company or otherwise, in its use or enjoyment of any
of the Company's Services or Products.
3.2. System and Network
3.2.1. Introduction of malicious programs into the Company's network
or server (e.g., viruses and worms).
3.2.2. Effecting security breaches or disruptions of Internet
communication. Security breaches include, but are not limited to,
accessing data of which Customer is not an intended recipient or
logging into a server or account that Customer is not expressly
authorized to access. For purposes of this Section 3.2.2., "disruption" includes,
but is not limited to, port scans, flood pings, packet spoofing
and forged routing information.
3.2.3. Executing any form of network monitoring which will intercept
data not intended for the Customer's server.
3.2.4. Circumventing user authentication or security of any host,
network or account.
3.2.5. Interfering with or denying service to any user other than
Customer's host (for example, denial of service attack).
3.2.6. Using any program/script/command, or sending messages of
any kind, designed to interfere with, or to disable, a user's terminal
session, via any means, locally or via the Internet.
3.2.7. Creating an "active" full time connection on
a Company-provided account by using artificial means involving
software, programming or any other method.
3.2.8. Any attempt to circumvent or alter monitoring, bandwidth
tracking or utilization reporting, or other actions which have
the effect of complicating the normal operational procedures of
the Company, including but not limited to altering, removing or
in any way modifying or tampering with Company created log files.
3.2.9. Any action which the Company determines, in its own judgment,
will reflect poorly on the Company or negatively impact its operations.
3.2.10. Any action which the Company deems to be an unacceptable
use of resources, business practice or otherwise unacceptable to
the Company.
3.3. Billing
3.3.1. Furnishing false or incorrect data on the order form, contract
or online application, including fraudulent use of credit card
numbers.
3.3.2. Attempting to circumvent or alter the processes any billing
procedures or procedures to measure time, bandwidth utilization,
or other methods to document "use" of the Company's Services
and Products.
3.4. Mail
3.4.1. Sending unsolicited commercial email messages (UCE), including
the sending of "junk mail" or other advertising material
to individuals who did not specifically request such material,
who were not previous customers of Customer or with whom Customer
does not have an existing business relationship ("email spam").
3.4.2. Sending UCE referencing an email address for any domain
hosted by the Company;
3.4.3. Sending UCE referencing a domain hosted by the Company;
3.4.4. Sending UCE referencing an IP address hosted by the Company;
3.4.5. Posting advertisements on IRC, ICQ, or any other public
chat system containing an email address hosted by the Company,
a domain hosted by the Company, an IP address belonging to the
Company;
3.4.6. The Company will be the sole arbiter as to what constitutes
a violation of these provisions.
3.4.7. Harassment, whether through language, frequency or size
of messages.
3.4.8. Unauthorized use, or forging, of mail header information.
3.4.9. Solicitations of mail for any other E-mail address other
than that of the poster's account or service with the intent to
harass or to collect replies.
3.4.10. Creating or forwarding "chain letters" or illegal "pyramid
schemes" of any type.
3.4.11. Use of unsolicited email originating from within the Company's
network or networks of other Internet Service Providers on behalf
of, or to advertise, any service hosted by the Company, or connected
via the Company's network.
3.4.12. Activities deemed to be unsolicited marketing efforts
or otherwise harassing in any way.
3.4.13. Customer will be charged a minimum $5,000.00 penalty charge
for each instance of a verifiable UCE that is reported to the Company
and faces immediate account suspension and/or termination, as well
as further penalties.
3.4.14. Abusive scripts scripts such as FFA's applications or
installations of "BIGSENDER" mailing list applications
(or any script/application designed to send rapid, unmonitored
email communications) are strictly prohibited.
3.5. Customer Support
3.5.1. The Company promotes a mutually-professional relationship
with its customers. Abusive, threatening, obscene or otherwise
harassing communications with agents of the Company, via telephone,
email, online chat or other means will result in immediate account
termination not withstanding any other terms of this agreement. Violation
of this or any section of this Agreement will result in refund
ineligibility.
4. Bandwidth & Utilization
In addition to the other terms of this agreement, which apply to all
plans, bandwidth and utilization, by its nature, is subject to a number
of differing and/or additional terms. Customer agrees that Company will
monitor and meter Customer's daily bandwidth and disk usage and in the
event that Customer exceeds the bandwidth or disk usage allocated to
each hosting package on any given day Company may take corrective action
which may, at Company's sole discretion, include the assessment of additional
charges, disconnection or discontinuance of any and all Services, or
termination of this Agreement. All bandwidth is measured daily and monthly
bandwidth allowances are divided by the calendar days of a given month
to determine the daily bandwidth allowance. Customer agrees that in the
event of a dispute Company's monitoring reports shall be the final method
of determination how much disk space and bandwidth was used and agrees
to pay the excess usage charges when due. Customer's logs files are counted
against any disk usage.
4.1 The Company provides the space and unlimited transfer in good
faith to our Customers so that they may create their Websites without
the fear of running over their Web traffic allocation. While
most Customers will use the space and traffic for their legitimate
Web site needs, we recognize that others may try to take advantage
of our offer and use the space and traffic in ways for which it is
not intended. In the best interests of our Customers and in an effort
to maintain the integrity of our service, the following common sense
rules will apply:
4.1.1. Customer's site must use and store only the information
and data that relates to the Website, at the IP address provided
by the Company.
4.1.2. Customer may not resell or give away Web space under a
domain name, nor may Customer build Websites that house "sub
domain" Websites on behalf of other companies, groups or individuals.
Customers who wish to resell the Company's Web space should utilize
the Company's Reseller Program;
4.1.3. Customer may not use Customer's Website to store Web pages,
files or data for other IP addresses or domain names, nor may Customer
use its Website as a repository for file, data or "Warez group" download
transfers. The Company reserves the right to make this determination,
in its sole and absolute discretion;
4.1.4. The Company's "unlimited traffic” offer is to provide
the Company's customers with storage space and bandwidth for active
Web pages and cannot be used as a "storage space" for
electronic files. An example of sites that fall under "electronic
storage" are large archives of images, compressed files, movies,
or sound files.
4.1.5. The storage and distribution of MP3 format files over 15
MB in size via the Company network is prohibited.
4.1.6. The Company does not permit sites where 40% or more of
the monthly traffic is from file downloads, or sites that use more
than 40% of system resources, or sites which in the Company's
view are detrimental to the enjoyment of the Company services by
the
Company's other clients, or are in the sole and final judgment
of the Company, detrimental to network or business operations.
All images in a Customer's hosting account must be linked to from
pages within the Customer's hosting account. It is a violation
of this agreement if Customer uses this account as merely an image,
sound or file library.
4.1.7. The Company offers daily backups of all site content and
archives data for 15 days. Normal hourly fees for restorations
(if requested by client) will apply. Company can only guarantee
the integrity of the first 300 megabytes of data backup yet Company
will exercise all reasonable efforts to backup Customer's entire
data content.
The Company may take whatever steps necessary to provide its services,
and to provide for the enjoyment of such services by all of the Company
clients, and to ensure that certain clients do not utilize services
to the detriment of other clients. Customers with Websites that do
not comply with these simple rules, or who seek to take advantage of
the Company unlimited storage or traffic plan in any other way, will,
at the discretion of the Company , have their sites canceled and/or
removed from the servers and have service charges assessed at the discretion
of the Company .
The Company will be the sole and final arbiter as to Websites or usages
of resources that constitute violation or intent to violate our policies.
Those Customers found in violation of these policies are subject to
a $300.00 service charge for each instance of violation, exclusive
of charges for the bandwidth and/or other resources utilized. Websites
which the Company must suspend or cancel due to violation of these
rules are not eligible to receive a refund for unused service, and
are subject to charges for bandwidth and usage of resources at twice
the standard rate for such resources. Acceptance of these Terms of
Services, and/or use of Company's services constitutes an acceptance
of any fines, penalties or service charges which might arise out of
violation of these policies.
5. Terms and Termination
For the purposes of Section 5 of this agreement, the term "Thirty
Day Guarantee Period" shall be defined as the period extending
from the date a Customer signs up his or her first domain with the
Company through the thirtieth (30) day following the initial signup
of the first domain enrolled.
5.1. All cancellations must be received by the Company a minimum
of five (5) days prior to the next billing date of the domain being
cancelled.
5.1.1. If the Customer notifies the Company less than five (5)
days before the next billing date of the domain being cancelled,
the charges incurred as a result of that renewal will not be refunded.
5.1.2. Cancellations requested within the Thirty Day Guarantee
Period are eligible for a full refund, less setup fees and add-on-service
fees which are non-refundable. Cancellations requested outside
the Thirty Day Guarantee Period are not eligible for a refund in
part or in full.
5.1.3. Cancellation requests will only be accepted via the methodology
at described here. Any
other form of cancellation request in not acceptable and billing
will continue until GoMainSt - WebMart receives said request.
5.2. Customer will not receive a refund for any other reason, including
but not limited to: late cancellation, slow connection caused by
Customer's ISP/network, Customer's ignorance, InterNIC delays, account
termination for violation of policies
5.3. By submitting a credit card or ACH information on the order
form, Customer agrees to authorize all recurring charges to the account
and any other balances incurred due to overages of limits, additions
of extras to the account, service charges and/or any other fees,
and to be bound to the terms of this Agreement.
5.4. Customer will not receive a refund for any setup fees or any
fees other than the monthly recurring hosting fees.
5.5. Customer will be charged a $15 reactivation fee for each site
suspended due to a billing-related issue.
5.6. Customer shall pay the fees and other charges for Products
and Services ordered from Company as published at time of order.
Company reserves the right to change rates without notice; any changes
in price will take effect upon renewal of the existing hosting account,
immediately for new purchases.
5.6.1. Customer agrees that the Company reserves the right to
change its fees, features, and discount offerings and the Customer
agrees to be bound by any changes of fee, feature, and/or discount.
5.7. The Company reserves the right to terminate this agreement,
and to delete the Website from its hardware, immediately upon the
occurrence of any of the following events:
5.7.1. Non payment of any charges due from Customer;
5.7.2. Breach of any term or condition of this agreement by Customer;
5.7.3. Commencement of any lawsuit or proceeding against Customer
arising from or relating to its use of the Website, whether or
not such suit names the Company as a party or seeks any recovery
from the Company.
5.7.4. Payment for any charges is due at the time of signup and
renewal respectively. All payments must be in U.S. Dollars. Accounts
which have balances outstanding shall be deemed to be in default
and subject to termination of service. Customer shall be responsible
for all costs of collection, including reasonable attorney's fees
and court costs, in event of a default for nonpayment of any amounts
due the Company.
6. Indemnification of Provider/Relationship of Parties
6.1. Customer agrees to indemnify and hold the Company harmless
from any lawsuit, claim, charge, or expense, including reasonable
attorney fees and costs of defense, for any matter arising from or
relating to Customer's Website provided hereunder.
6.2. Nothing contained herein shall be deemed to create a relationship
between the Company and Customer in the nature of a partnership,
joint venture, editor/publisher or otherwise. Both parties acknowledge
and agree that the Company has no interaction with the data or substance
of Customer's Website, except as necessary to maintain the Website.
7. Security/Software
7.1. Customer agrees to take all steps reasonable, necessary, and
prudent to protect Customer's login ID and password.
7.2. Customer agrees not to attempt to undermine or cause harm to
any server, software, system or customer of the Company.
7.3. Customer agrees to maintain Customers' computing equipment
responsibly, including running virus software.
7.4. Uploading a virus to a Company server will result in account
termination, service charges and/or prosecution.
7.5. Customer acknowledges that the Company cannot provide technical
support for any software and/or script that the Customer installs,
other than variable name changes. Customer also acknowledges that
the Company does not supply technical support for Microsoft FrontPage,
other than initial configuration. The Company supplies technical
support for Web hosting issues only. The Company shall be the sole
arbiter as to what constitutes a "Web host" issue.
8. Violation
Any attempt to undermine or cause harm to the Company server or another
customer's Web presence is strictly prohibited. Any violation of the
above Terms of Service will result in grounds for account termination,
with no refunds given; the Company reserves the right to remove any account
without prior notice. Violation of these Terms of Service may result
in legal action, service charges or a combination thereof.
9. Confidentiality
Customer acknowledges that by reason of their relationship, both the
Customer and the Company may have access to certain products, information
and materials relating to the other part’s business, which may include
business plans, customers, software technology, and marketing plans that
are confidential and of substantial value to either party, respectively,
and which value would be impaired if such information were disclosed
to third parties. Consequently, both the Company and the Customer agree
that it will not use in any way for its own account or for the account
of any third part, nor disclose to any third part, any such information
revealed to it by either part, as the case may be.
The Customer and the Company further agrees that each will take every
appropriate precaution to protect the confidentiality of such information.
In the vent of termination of this agreement, there shall be no use
or disclosure by either party of any such confidential information
in its possession, and all confidential documents shall be returned
to the rightful owner, or destroyed. The provisions of this section
shall survive the termination of the agreement for any reason. Upon
any breach or threatened breach of this section, either party shall
be entitled to injunctive relief, which relief will not be contested
by the Customer or the Company.
10. Refusal of Service
10.1. The Company reserves the right to refuse or cancel service
in its sole discretion with no refunds.
10.2. If any of these Terms of Service are failed to be followed
it will result in grounds for immediate account deactivation.
11. Disclaimer
11.1. USE OF THE COMPANY’S SERVICES AND PRODUCTS IS AT CUSTOMER’S
SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS
THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE,
MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY’S SERVICES
AND PRODUCTS WILL NOT BE INTERRUPTED OR BE ERROR FREE; NOR DO THEY
MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE
USE OF THE COMPANY’S SERVICES AND PRODUCTS OR AS TO THE ACCURACY,
OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED
OR PROVIDED THROUGH THE COMPANY’S SERVICE, UNLESS OTHERWISE EXPRESSLY
STATED IN THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING
FROM DELAYS, ON DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE
INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSES.
11.2. THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS
MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING
ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY,
SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES AND CHARGES PAID TO
THE COMPANY BY THE CUSTOMER.
11.3. The Company reserves the right to revise or change these Terms
of Service at any time.
11.4. This Agreement shall be governed in all respects under the
laws of the State of Arizona applicable to contracts made, accepted
and performed wholly in Arizona, without application to principles
of conflict of laws, and the Customer and the Company agree that
the sole venue and jurisdiction for any disputes arising from this
Agreement shall be the appropriate federal or state court located
in the State of Arizona
12. Domain Registration Agreement, ICAAN Policies
For domain name registrations obtained by the Customer through the
Company, in addition to this Agreement and notwithstanding any other
term of this Agreement, you agree to be bound by the terms and conditions
of the Registration Agreement of Internet Order Your Name ("OYN")
as amended from time to time (the "OYN Agreement") and which
may be viewed at http://www.itsyourdomain.com/documents/registerdisputepolicy.php,
and you agree to be bound by all policies of and all agreements between
OYN and the Internet Corporation for Assigned Names and Numbers or
Network Solutions, Inc. (ICAAN)as amended from time to time. Without
limiting the generality of the foregoing, you agree that any dispute
with respect to your domain name will be subject to the provisions
of the domain dispute policy located at http://www.itsyourdomain.com/documents/registerdisputepolicy.php
as such policy is amended and revised from time to time.
12.1. Customer acknowledges that all fees billed for domain registration
will be billed directly to the Customer's credit card by OYN and
that
12.2. By registering a domain name through the Company, the Customer
is establishing a relationship with OYN separate from the Company
and this Agreement.
12.3. The Company is the domain name hosting business. All
customer accounts are setup with the understanding that the Customer
will transfer authoritative DNS control of the domain hosted to the
Company, i.e., the Company requires the Customer to update the domain
name registration of any domain hosted by the Company to list
the Company's domain name servers as the hosting entity. The
Company does not provide extended access to its network through non-authoritative
DNS means for any purpose other than initial account setup. Third-level
domains are provided for 30 days after account creation and may not
be used as a primary means of access to an assigned web space.
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