AGREEMENT
This Agreement sets forth the Standard Terms and Conditions that apply to the
use of the ThinkHost, Inc. Services. YOUR USE OF THE ThinkHost, Inc. SERVICES INDICATES YOUR
AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE. You agree to
familiarize yourself with the Terms of Service, and abide by them if you choose
to use the services to which such terms apply.
USER CONDUCT
You agree to abide by all applicable local, state, national and international
laws and regulations regarding your use of our service.
USER ELIGIBILITY
You represent and warrant that you are the person legally responsible for all
use of this account, and are at least 18 years of age. If you are under 18 years
of age, you must have parental consent in order to participate, and the account
must be opened and maintained by a parent or legal guardian, in their name. You
agree to provide ThinkHost, Inc. with your full legal name, postal address,
telephone number
and an email address that is not hosted through
us for our records, and you have a continued obligation to keep
this information current. You also agree that you are an authorized user of any
credit card that you supply to us, and you understand and agree that we have an
obligation to fully investigate any possible fraudulent credit card use.
CONTENTS OF MESSAGES
You are responsible for the contents of your messages and your website and the consequences thereof. You agree not to do anything that would restrict or inhibit any other user from using and enjoying the Internet. You further agree not to use ThinkHost, Inc. to send any messages or material that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or may otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or court order. ThinkHost, Inc. reserves the right to terminate your account without prior notice if ThinkHost, Inc. becomes aware of and determines, in its sole discretion, that you are violating any of the foregoing guidelines
UNLAWFUL OR PROHIBITED USE
As a condition of your use of the ThinkHost, Inc. Service you warrant to ThinkHost, Inc.
that you will not use the ThinkHost, Inc. Service for any unlawful purpose.
TERMS OF PAYMENT
All payments are due and payable by the first of the month.
You agree to pay ThinkHost, Inc. appropriate payment for the services received from
ThinkHost, Inc., in advance of the time period during which such services are
provided. You agree to provide ThinkHost, Inc. with current billing and contact
information and authorize ThinkHost, Inc. to bill all account and related charges to
the credit card on file. You further agree that until and unless you notify ThinkHost, Inc.
of your desire to cancel any or all services received, and you
complete the cancellation process, those services
will be billed on a recurring basis. In order for the account to be cancelled,
it must be paid in full at the time of cancellation. You agree that prepayments will be billed
and charged automatically, that ThinkHost, Inc. may apply the amount due to the
provided card at any time, and will issue absolutely no refunds.
If your credit card is denied for any reason on the first attempt, we will
automatically attempt to resubmit your card on on or around the 7th, 14th, 25th
and last day of the month. A credit card resubmission fee of $10.00 will be charged against the
account for every time we attempt resubmission. Should the card be denied again,
we may terminate the account, and the resubmission fees (up to $50.00 per month) will need
to be paid before the account can be reactivated. All files within the account
may be deleted on termination. You may notify us in advance of your next billing
cycle your desire to provide for alternative payment arrangements.
Should payment continue to be late, ThinkHost may choose
to terminate the account at any time and all accumulated fees will need to be
paid before the account can be reactivated again.
ThinkHost, Inc.
reserves the right to change prices at any time.
Each account has resource quotas; it is the account owners responsibility to
monitor usage. Any quota excess is payable by the account owner
WEBSITE CONTENT
You are responsible for keeping a copy of their most current website files as
backup on a remote system. ThinkHost, Inc. is not responsible for any lost files,
information, or data.
USER RESPONSIBILITIES
You may not initiate any of the following on the ThinkHost, Inc. servers:
- Any process that requires more than 4Mb of
memory space, more than 15 CPU seconds, or uses more than 1% of all
available system resources at any time or otherwise threatens the stability
of the server.
- Any type of interactive real-time chat
applications that require server resources. These do not include applications
such as HumanClick, as remotely hosted services are fully allowed.
- Any other service that performs CGI services
for any site not within the account, such as a banner exchange.
- Any stand-alone, unattended server-side
processes. This includes any and all daemons, such as IRCD (internet relay
chat daemon).
- Any software that interfaces with an IRC
(Internet Relay Chat) network.
Users are also required to abide by the
following rules:
- No database may be used for logging of
information available through our server logs (ie traffic counters). Please
contact us if you need detailed statistics for your website, we can work with
you to develop a manageable solution. We also provide Webalizer stats free
with each account.
- Databases are only to be used for ThinkHost, Inc.-hosted websites, and no outside access will be granted.
- No cron job may run more than once every two
hours.
-
Software such as HumanClick, LivePerson and other similar customer
communication tools are fully allowed on our servers, as long as they are
within the guidelines of this Agreement.
ThinkHost reserves the right to suspend accounts that utilize large amounts
of space for the purposes of backup, download, video and audio archives. Image galleries of over
250 megabytes are not permitted. Gaming
sites are not permitted on our servers.
You agree not to interfere with the operation
of the system. You further agree not to interfere with the proper operation of
other systems reachable through the Internet, including any attempt at
unauthorized access. You agree to adhere to system policies as published by ThinkHost, Inc., including restrictions on services available with each service type,
restrictions on certain features, and all other policies. You agree to abide by
any and all future ThinkHost, Inc. policy decisions. Failure to observe these
policies may include suspension or termination of your account without notice.
ZERO TOLERANCE SPAM POLICY
ThinkHost, Inc. takes a zero tolerance stance against sending of unsolicited
e-mail, commonly known as spam. Any user who sends out spam will have their
account terminated without notice, and will be billed at a rate of $10 for each
recipient to whom the message was sent, regardless of whether the messages were
sent from our server, or from another server advertising a site hosted on our
servers. All commercial mailings must also comply with the CAN-SPAM act and any
other applicable federal, state or local laws. ThinkHost, Inc. reserves the right to require changes or disable as necessary
any website, account, database, or other component that does not comply with
this policy, at its sole discretion. ThinkHost, Inc. also reserves the right to make
any such modifications in an emergency at our sole discretion.
MONITORING OF SERVICE
You agree that ThinkHost, Inc. has the right to monitor the service electronically
from time to time and to disclose any information as necessary to satisfy the
law, or to protect itself or its subscribers. ThinkHost, Inc. reserves the right
to refuse to post or to remove any information or materials, in whole or in
part, that, in its sole discretion, are unacceptable, undesirable, or in
violation of this agreement. ThinkHost, Inc. also reserves the right to refuse refunds
in cases where ThinkHost, Inc. believes abuse has taken place. ThinkHost, Inc.
reserves the right to monitor any and all communications through or with our
facilities. You agree that ThinkHost, Inc. is not considered a "secure communications
medium" for the purposes of the ECPA, and that no expectation of privacy is
afforded.
SHARING OF ACCOUNT SPACE & RESALE RESTRICTIONS
You represent and warrant that the account you purchase is purchased either
for yourself or on behalf of a client if you are a reseller. You agree that as a
reseller, you are the individual solely responsible for all use of the account.
QUICKSITE SERVICES
Note: This section only applies to clients
who opened a QuickSite account prior to October 20, 2004
ThinkHost, Inc. offers a QuickSite Service in which you may rent a full website (design, hosting and domain name) from
ThinkHost, Inc.. All contents of the website and web design provide to you through the QuickSite Service are proprietary to
ThinkHost, Inc., and/or its suppliers and are protected under Copyright and other laws, all rights are reserved.
ThinkHost, Inc. reserves any rights not expressly granted herein.
If you choose to use the QuickSite Service, you acknowledge that ThinkHost, Inc.
retains all rights to the web design provided to you through the Service. If you choose to move to another webhost, you may not take the design unless you obtain a license from
ThinkHost, Inc..
Furthermore, if you do obtain the license from ThinkHost, Inc. it will be a non-exclusive non-transferrable license in which you can only use the design with the single website it was originally purchased for.
REFUND POLICY
All payments are non-refundable, except under specific circumstances in
relation to Freedom and The Plan II plans (see below).
TERMINATION
ThinkHost, Inc. may terminate this agreement and your access to any or all ThinkHost, Inc.
related services at any time, with or without cause, effective
immediately. ThinkHost, Inc. shall have no responsibility to notify any third-party
providers of services, merchandise, or information, nor any responsibility for
any consequences resulting from such discontinuance or lack of notification.
Anyone determined by ThinkHost, Inc. to have violated these Terms of Service may be
barred from receiving any services from ThinkHost, Inc. Any outstanding amount
due on the account will still be payable.
You may terminate this Agreement at any time by contacting the support department
at ThinkHost, Inc., who will then provide you with a form that must be completed and
returned before your account can be cancelled. No refund shall
be issued. ThinkHost, Inc. must receive all completed and correct termination
requests by midnight on the end of the previous month in order to avoid paying
for the next month's service and account to be cancelled must be paid in full at
the time of cancellation.
FREEDOM PLANS - ADDITIONAL TERMS/GUARANTEE
Freedom 12 and Freedom 24 plans offer a 14 day money back guarantee. If our service does not live up to our marketing in any way, we are happy to offer a full refund
Freedom 12 and Freedom 24 plan contracts
renew automatically every period, unless cancelled in writing at least 30 days before renewal time.
THE PLAN II TERM PLANS - ADDITIONAL TERMS/GUARANTEE
The Plan II 6 month, 1 year, and 2 year term contracts are
payable in advance and contracts
renew automatically every period, unless cancelled in writing at least 30 days before renewal time.
We stand behind our services and offer a full 28-day money-back guarantee. If at any point during the first 28 days of your stay with us you find our services to be in any way not as advertised, we will refund your money in full. The customer will be refunded all hosting charges made to their credit card less any setup fees which are non-refundable. Refunds will not be
provided in the case of account non-use, misuse, or abuse. Refunds will not be given on domain registration fees.
COUPONS ENDING IN TCM6A AND TCM12A
Note: the following conditions only apply to the TCM6A or TCM12A
coupon code suffixes - all other coupon codes commencing with THD99999 are
not subject to the conditions contained in this clause.
By signing on with our services using a coupon code ending in either TCM6A
or TCM12A on the package order form, you acknowledge you are entering a
contract for the provision of hosting services for the following period:
THD99999TCM6A - 6 months free, 12 month commitment
THD99999TCM12A coupon - 12 months free, 24 month commitment
If you should choose to terminate your account before the end of the
commitment period, you accept that you will be required to pay the plan setup
fee and the value of the free hosting you have been provided with in accordance
with the equivalent standard plan rates.
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed as creating any
agency, legal representative, partnership, or other form of joint enterprise
between the parties. Neither party shall have authority to contract for or bind
the other in any manner whatsoever.
DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
THE ThinkHost, Inc. SERVICE PROVIDED 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. ThinkHost, Inc. EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY THAT THE ThinkHost, Inc. SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR
UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ThinkHost, Inc., ITS
EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY
SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL ThinkHost, Inc., OR ITS AFFILIATES
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
THAT RESULT FROM THE USE OF OR INABILITY TO USE THE ThinkHost, Inc. SERVICE, INCLUDING
BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE ThinkHost, Inc. SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF
FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN
OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT
LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR
UNAUTHORIZED ACCESS TO ThinkHost, Inc. RECORDS, PROGRAMS OR SERVICES. YOU HEREBY
ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT ThinkHost, Inc. IS GIVEN
NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO
ALL SERVICES AVAILABLE FROM ThinkHost, Inc. AND ITS AFFILIATES.
UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE
LOSS OF BUSINESS, OR LOSS OF PROFITS WHETHER BASED ON BREACH OF AGREEMENT,
BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE.
THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR
WHATEVER REASON.
COPYRIGHT AND TRADEMARKS
All contents of the ThinkHost, Inc. Website are proprietary to ThinkHost, Inc., and/or
its suppliers and are protected under Copyright. All rights are reserved. ThinkHost, Inc.
reserves any rights not expressly granted herein.
FORCE MAJEURE
If by reason of failures of telecommunications or internet service
providers, labor disputes, riots, inability to obtain labor or materials,
earthquake, fire or other action of the elements, accidents, governmental
restrictions or other causes beyond the control of ThinkHost, Inc., ThinkHost, Inc.
is
unable to perform in whole or in part its obligations as set forth in this
Agreement, then ThinkHost, Inc. shall be relieved of those obligations to the extent
it is so unable to perform and such inability to perform shall not make ThinkHost, Inc.
liable to the User.
GOVERNING LAW
Nevada law shall govern this Agreement, and any dispute arising from the
relationship between the parties to this Agreement, excluding any laws that
direct the application of another jurisdiction's laws. In any litigation,
arbitration, or other proceeding by which one party either seeks to enforce its
rights under this Agreement (whether in contract, tort, or both) or seeks a
declaration of any rights or obligations under this Agreement, the prevailing
party shall be awarded its reasonable attorney fees, and cost and expenses
incurred, subject to the Limitation of Liabilities clause. The parties consent
to the exclusive jurisdiction and venue of the courts of the State of Nevada or to any Federal Court located within the State of
Nevada.
ARBITRATION
Any legal controversy or legal claim arising out of or relating to this
Agreement or our services shall be settled by binding arbitration before the
American Arbitration Association. Any such controversy or claim shall be
arbitrated on an individual basis, and shall not be consolidated in any
arbitration with any claim or controversy of any other party. The arbitration
shall be conducted in Nevada, as the parties to this agreement agree to be
governed by the laws of Nevada. Either party may seek any interim or
preliminary relief from a court of competent jurisdiction in Nevada necessary
to protect the rights or property of party pending the completion of
arbitration. The prevailing party from arbitration shall be entitled to
reasonable attorney's fees, which shall be set forth by the arbitrator(s).
Judgment upon the award rendered may be entered in any court in the state of Nevada
with jurisdiction. The decision of the arbitrator shall be final and
binding on the parties. The parties shall bear equally all fees, costs and
expenses of the arbitration, and each party shall bear its own legal expenses,
attorneys fees, and costs of all experts and witnesses, provided, however, the
arbitration panel may apportion between the parties, as said arbitrator may deem
equitable, the cost incurred by either party.
Should either party file an action contrary to this provision, the other party
may recover attorneys' fees and costs up to one thousand ($1000) dollars.
SEVERABILITY
If any provisions of this Agreement shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court finds that any provision of this Agreement is invalid or
unenforceable, but that by limiting such provision it would become valid or
enforceable, then such provision will be deemed to be written, construed, and
enforced as so limited.
SURVIVABILITY
The terms of this Agreement apply to those obligations that survive any
cancellation, termination, or rescission, namely - warranty, indemnification,
liability and limits thereon, rights and obligations upon and following
termination and assignment.
INDEMNIFICATION
You agree to defend, indemnify and hold harmless ThinkHost, Inc. against any and
all claims, losses, penalties, causes of action, damages, liability, costs,
expenses (including but not limited to reasonable attorneys' fees) or claims
caused by or resulting indirectly from your use of the service, without
limitation or exception, including your violation of any third-party's rights,
(including, without limitation, infringement of any copyright trademark, service
mark, trade secrets, right of privacy or publicity or any other third party
right). The terms of this section shall survive the termination of your
relationship with ThinkHost, Inc..
REMEDY
You agree that your sole and exclusive remedy to any issues relating to the ThinkHost, Inc.
Service is to discontinue using the Service.
ASSIGNMENT
In the event of a merger or consolidation of ThinkHost, Inc., the surviving or new
corporation and any subsidiaries are similarly subject to the rights and
obligations of this Agreement.
ENTIRE AGREEMENT
Unless otherwise specified herein, this Agreement constitutes the complete
and exclusive statement of the Agreement between the parties regarding the
products and services provided hereunder, and supercedes any prior Agreements
between the parties with respect thereto.
WAIVER
The failure of ThinkHost, Inc. to enforce a provision of this Agreement shall not
be construed as a waiver or limitation of ThinkHost, Inc.'s right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
MODIFICATION OF TERMS
ThinkHost, Inc. reserves the right to modify this policy at any time and without
advance notice, effective upon making the modified provisions available on the ThinkHost, Inc.
Website. You are responsible for regularly reviewing these documents.
Continued use of the ThinkHost, Inc. Services after any such changes shall constitute
your consent to such changes. ThinkHost, Inc. does not and will not assume any
obligation to notify you of any changes to the Terms of Service.
