READ THESE TERMS OF SERVICE AND ALL THE RELATED DOCUMENTS THAT MAKE UP THE AGREEMENT CAREFULLY BECAUSE THEY AFFECT YOUR LEGAL RIGHTS AND GOVERN YOUR RELATIONSHIP WITH “HEY TOMMY INC.” and its owner Hey Tommy Hosting Inc. (the “Company”) which has agreed to furnish certain Internet-based website hosting services/virtual private server services (the “Service”, collectively “Services”) to persons holding accounts in good standing with the Company (individually, “Account Holder”, collectively “Account Holders”) whom the Company conditionally permits to use its computer systems and Internet website hosting services subject to and conditional upon the following terms of agreement between you, the Account Holder, and the Company..
THE ACCOUNT HOLDER’S USE OF THE COMPANY’S HOSTING SERVICES CONSTITUTES THE ACCOUNT HOLDER’S PRIOR EXPRESS INTENTION TO ACCEPT AND AGREE TO THE COMPANY’S ACCEPTABLE USE POLICY (“AUP’), REFERRAL POLICY (“RP”), PRIVACY STATEMENT AND THESE TERMS OF SERVICE (“TOS”) ALL OF WHICH CONSTITUTE THE ENTIRE CONTRACT BETWEEN THE COMPANY AND EACH ACCOUNT HOLDER (COLLECTIVELY, THE “AGREEMENT”).
THE COMPANY WILL REASONABLY STRIVE TO ALERT AND GIVE NOTICE TO ACCOUNT HOLDERS BY EMAIL USING THE ACCOUNT HOLDER’S EMAIL ADDRESS EARLIER PROVIDED TO THE COMPANY OF ANY VIOLATION OF THE TERMS OF THE AGREEMENT. ANY VIOLATION OF THE AGREEMENT TERMS WILL CONSTITUTE A FUNDAMENTAL DEFAULT OF THE AGREEMENT AND, THEREFORE, ENTITLE THE COMPANY TO IMMEDIATELY CEASE PROVISION OF ALL SERVICES AND CAUSE FORFEITURE OF THE ACCOUNT HOLDER’S RIGHTS UNDER THE AGREEMENT AND THE ACCOUNT AND ANY CREDIT THEREON.
BE AWARE THAT THE AGREEMENT MAY BE CHANGED FROM TIME TO TIME AT THE SOLE DISCRETION OF THE COMPANY WITHOUT PRIOR NOTICE TO THE ACCOUNT HOLDER. THE ACCOUNT HOLDER UNDERSTANDS AND ACKNOWLEDGES THAT CHANGES TO THE AGREEMENT BY THE COMPANY SHALL NOT BE GROUNDS FOR CONTRACT TERMINATION OR NON-PAYMENT. THE ACCOUNT HOLDER AGREES TO CHECK THE COMPANY’S WEBSITE FROM TIME TO TIME TO REVIEW THE CURRENT TERMS OF THE AGREEMENT IN EFFECT AT ALL MATERIAL TIMES. THIS AGREEMENT SHALL BE CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA, CANADA AND THE ACCOUNT HOLDER AGREES TO EXCLUSIVELY ATTORN TO THE COURTS OF BRITISH COLUMBIA AND THAT ANY ARBITRATION CONCERNING THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE COMPANY AND ACCOUNT HOLDER WILL BE IN VANCOUVER, BRITISH COLUMBIA, CANADA.
- Disclosure to Public Authorities: The AUP and RP specifically prohibit the use of the Services for illegal activities or any activity that the Company may deem in its sole discretion to be adverse to its interest and potentially erode its goodwill in the market place. Therefore, the Account Holder agrees that the Company may disclose any Account Holder personal information, including assigned IP numbers, account history, account use when legally required to do so without further consent or notification of the Account Holder. Further, the Company shall have the right to terminate all Services set forth in this TOS and, generally, pursuant to the Agreement, upon a demand for an accounting of an Account Holder’s activity by a governmental authority having jurisdiction over the Company or Account Holder.SERVICE RATES: THE ACCOUNT HOLDER ACKNOWLEDGES THAT THE NATURE OF THE SERVICES FURNISHED AND THE INITIAL RATES AND CHARGES HAVE BEEN SUFFICIENTLY COMMUNICATED TO ACCOUNT HOLDER. THE ACCOUNT HOLDER IS AWARE THAT THE COMPANY MAY PROSPECTIVELY CHANGE THE SPECIFIED RATES AND CHARGES FROM TIME TO TIME WITHOUT FURTHER NOTICE AND IT IS ENTIRELY UP TO THE ACCOUNT HOLDER TO STAY APPRISED OF SUCH CHANGES WHICH MAY OCCUR FROM TIME TO TIME BY ON-GOING REFERENCE TO THE COMPANY’S WEBSITE.
- Payment: Commencement of the Services is dependent upon the Company receiving full payment of stated and requested charges. Subsequent payments of rates, charges and fees are due on the annual (yearly) anniversary date immediately following the Commencement Date of Services unless otherwise specified by the Company. All requested payments of Account Holders by the Company are subject to additional charges for applicable taxes in effect at the time that the Company renders its bill for Services or any other charge of the Company to the Account Holder becomes owing and due in any event.
- Payments and Fees: SERVICES WILL BE SUSPENDED AND POTENTIALLY CANCELLED ON ACCOUNTS THAT REACH 14 DAYS PAST DUE. SERVICE INTERRUPTION FOR NONPAYMENT IS SUBJECT TO A $10 RE-ACTIVATION FEE. IF AN ACCOUNT HOLDER DESIRES TO CANCEL AN ACCOUNT AND TERMINATE THE AGREEMENT, THE PROCEDURE OUTLINED HEREIN WILL APPLY. TERMINATION OF THE AGREEMENT WILL NOT, IN ANY EVENT, EXTINGUISH THE ACCOUNT HOLDER’S DEBT TO THE COMPANY IF ANY BALANCE OWING TO THE COMPANY REMAINS UNPAID.
- Refund and Disputes: Payments for domain name registrations are nonrefundable regardless of usage. All billing disputes by the Account Holder must be reported in writing to the Company within 30 days of the dispute arising and, in any event, no later than current annual billing term in which the cause of the claim first arose. Failure to provide the required timely written notice to the Company of a dispute and claim will absolutely bar and forever extinguish such stale claim(s).
- Failure to Pay: The Company may temporarily suspend Services or terminate the Services upon failure of Account Holder to pay charges when due. Such suspension or termination will not relieve Account Holder of responsibility for the payment of accrued charges, plus interest at a rate of the published Bank of Canada’s Prime Rate of interest current in effect at the time of billing plus 10% interest per annum calculated and applied monthly to all unpaid balances owing and due from the Account Holder to the Company.
- Account Cancellation: Requests to cancel accounts must be made by email to: email@example.com. The Company will use reasonable efforts to process properly submitted cancellation requests within 14 days of receipt.
- Limited Liability: ACCOUNT HOLDER AGREES THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, AND INJURY ARISING DIRECTLY OR INDIRECTLY FROM THE AGREEMENT. THE ACCOUNT HOLDER HEREBY DECLARES AN ABSOLUTE INTENTION TO WAIVE ALL CLAIMS AGAINST THE COMPANY OF ANY KIND AND HOLD THE COMPANY HARMLESS EXCEPT THAT THE ACCOUNT HOLDER FURTHER ACKNOWLEDGES THE COMPANY’S LIABILITY SHALL NOT EXCEED EQUIVALENT CHARGES PAYABLE BY ACCOUNT HOLDER FOR SERVICES. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS, OR INJURY WHETHER FOUNDED IN CONTRACT OR TORT OR UNDER STATUTE.
- Domain Accounts: All webhosting accounts/virtual private server accounts involving domains will be established and activated as soon as reasonably practical following receipt of the Account Holder’s full payment of outstanding charges to the Company including all applicable taxes.All new domains are registered though: “Namecheap Inc.”, an ICANN (https://www.icann.org/, Internet Corporation for Assigned Names and Numbers) accredited registrar. By creating a new Domain the Account Holder accepts Namescheap Inc.’s Terms and Conditions, regarding Domain management as outlined in the following documents, which are incorporated by reference into this TOS and the Agreement:
- Transfer of Domains: DUE TO THE UNPREDICTABLE NATURE OF THE TRANSFER PROCESS, NO GUARANTEES OR REPRESENTATIONS OF ANY KIND ARE MADE BY THE COMPANY REGARDING THE AMOUNT OF TIME A SPECIFIC DOMAIN TRANSFER MAY TAKE OR THE SPECIFIC OUTCOME. IF THE ACCOUNT HOLDER CANCELS SERVICE DURING THE TRANSFER PERIOD FOR ANY REASON THAT WILL JEOPARDIZE THE TRANSFER.
- Domain Registration: It is Account Holders’ sole responsibility to ensure that the Account Holder’s domain registration is maintained at all times. Account Holder is exclusively responsible for management of its domain(s) including applicable renewal fees under the Agreement.
- VPS Backups: The Account Holder acknowledges that unless they subscribe to a VPS Backup Service, they are responsible for backup and archiving of their VPS content
- The customer is responsible for keeping the security of their VPS up to date, this includes but is not limited to the following:
- Any announced security holes pertaining to the kernel (operating system) will be patched within 7 days
- Any security announcements defined by the community at large pertaining to the operating system will be patched within 7 days
- Technical Support: the Company provides limited technical support to Account Holders Monday-Friday 9:00 a.m to 5:00 p.m. Pacific Time (excluding holidays). While support is provided for Account Holders’ during the initial account setup, on-going technical support is limited to our provision of Services. Email: firstname.lastname@example.org for assistance.
- SPAM and Unsolicited Commercial Email (“UCE”): THE COMPANY TAKES A “ZERO TOLERANCE” APPROACH TO THE SENDING OF UNSOLICITED COMMERCIAL EMAIL (UCE), WHICH INCLUDES EMAIL OF A COMMERCIAL OR OTHER NATURE SOLICITING THE RECEIVER IN ANY MANNER, OR SPAM OVER THE SERVICE. ACCOUNT HOLDERS MAY NOT USE THE SERVICE TO TRANSACT UCE. ACCOUNT HOLDERS MAY NOT HOST, OR PERMIT, WHETHER KNOWINGLY OR INADVERTENTLY, HOSTING OF SITES OR INFORMATION THAT IS ADVERTISED BY UCE FROM OTHER NETWORKS. IN ADDITION, IT IS NOT ACCEPTABLE TO TRANSMIT BULK EMAIL THROUGH REMOTE SOCKS, HTTP OR OTHER SIMILAR PROXIES WHICH, IN TURN, MAKE A SMTP (TCP PORT 25) CONNECTION TO THE DESTINATION MAIL SERVERS. WE RESERVE THE RIGHT TO OCCASIONALLY SAMPLE BULK EMAIL BEING SENT FROM THE COMPANY SERVERS AND TO MONITOR USE AT ALL MATERIAL TIMES.
Like any other possible breach of a term of the Agreement, upon notification of an Account Holder’s alleged violation of the UCE policy, the Company may initiate an investigation. During investigation, the Company may restrict Account Holder access to the Company’s network to prevent further violations and mitigate harm to innocent parties. If the Company determines that an Account Holder has violated its UCE policy, the Company may, in its sole discretion restrict, suspend or terminate the Account Holder’s account. Further, the Company reserves the fully recover for any costs associated with the investigation and enforcement of a substantiated policy violation. The Company will notify law enforcement officials and all applicable governmental authorities if the violation is believed to be contrary to law or contrary to public policy.
Account Holders are ultimately responsible and solely liable for the actions and omissions of their clients that may adversely affect the Company’s Services; the Account Holder should develop and enforce similar use policies for their clients.
- Network Usage
Disk Usage: Account Holder agrees that disk usage shall not exceed the allotted storage capacity (specified number of Gigabytes) per month for the Services ordered by Account Holder. The Company may monitor the Account Holder’s disk usage, and shall have the right to take corrective action if the Account Holder exceeds agreed amount. Corrective Action may include assessment and collection of additional charges, or suspension or termination of account. Corrective action may be taken at the Company’s sole and absolute discretion. If the Company takes corrective action, the Account Holder will not be entitled to a refund of fees paid.
WEB SERVER/MYSQL (DATABASE) USAGE: THE COMPANY HOLDS THE RIGHTS TO SUSPEND OR TERMINATE AN ACCOUNT OF AN ACCOUNT HOLDER IF “RESOURCE INTENSIVE SCRIPTS”, “CRON JOBS” (SCHEDULED JOBS ON THE OPERATING SYSTEM), OR “JOBS INTENSIVE SC” FOUND TO BE OVERLOADING THE SERVER. ACCOUNT HOLDERS ARE EXPECTED TO OPTIMIZE THEIR “MYSQL QUERIES”, ADD INDEXES, AND DISABLE DELAYED INSERTS TO KEEP THE SCRIPTS FROM OVERLOADING THE SERVER. INACTION OR FAILURE TO TAKE PROMPT ACTION TO CORRECT SUCH DEFAULTS BY THE ACCOUNT HOLDER AND PROPERLY COMPLY WITH THESE REQUIREMENTS CAN RESULT IN THE ACCOUNT HOLDER’S ACCOUNT BEING SUSPENDED OR TERMINATED. THE COMPANY MAY REQUIRE AN ACCOUNT HOLDER TO UPGRADE TO A MORE SUITABLE HOSTING PACKAGE/VIRTUAL PRIVATE SERVER PACKAGE IF THEIR VISITOR COUNT IS FOUND TO BE GREATER THAN 15,000 VISITORS PER DAY (FOR HOSTING PACKAGES) OR 30,000 VISITORS PER DAY (FOR VIRTUAL PRIVATE SERVER PACKAGES) OR AS MAY BE SUBSEQUENTLY SPECIFIED BY THE COMPANY FROM TIME TO TIME.
SYSTEM AND NETWORK SECURITY: ACCOUNT HOLDERS/CLIENTS ARE PROHIBITED FROM VIOLATING OR ATTEMPTING TO VIOLATE THE SECURITY OF THE COMPANY SERVERS. VIOLATIONS OF THE COMPANY INPUT OUTPUT LOAD (IOL) SYSTEM OR NETWORK SECURITY MAY RESULT IN CIVIL OR CRIMINAL LIABILITY. THE COMPANY MAY INVESTIGATE OCCURRENCES, WHICH MAY INVOLVE SUCH VIOLATIONS AND COOPERATE WITH, LAW ENFORCEMENT AND GOVERNMENTAL AUTHORITIES IN INVESTIGATING ACCOUNT HOLDERS/CLIENTS WHO ARE INVOLVED IN SUCH VIOLATIONS. THESE VIOLATIONS INCLUDE, WITHOUT LIMITATION:
- Accessing data not intended for the Account Holder or logging into a server or account, which the Account Holder is not authorized to access.
- Attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
- Attempting to interfere with service to any other Account Holder, host or network, including, without limitation, via means of Distributed Denial of Server (DdoS) and “spamming”.
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- Taking any action in order to obtain Services to which such Account Holder is not entitled or authorized.
- Notification of Violation: The Company is under no duty to monitor an Account Holder’s activities to determine if a violation of the AUP or RP, and the Agreement as whole may have occurred. Account Holders that the Company determines to have violated any element of this Agreement will be sent an email message setting out notice of the violation. Failure to give such notice by the Company in no way abrogates, mitigates, waives, or acquiesces the violation. The Service may, at the Company’s sole discretion, be suspended, pending an Account Holder’s agreement to refrain from further violations and in some scenarios the Company may terminate accounts immediately without further notice to the Account Holder. Account Holders that the Company determines to have committed a second violation of Agreement shall be subject to immediate suspension or termination of service without further notice or any kind whatsoever.
- Indemnification: The Account Holder agrees to indemnify and hold harmless the Company for any violation of the Agreement that results in any loss or expense to the Company or the bringing of any claim against the Company by any third-party. The Account Holder agrees to pay any award of damages or fine(s) or other pecuniary charge, including interest, awarded against the Company in connection to the Account Holder’s account, plus all legal fees assumed by the Company on a solicitor/client basis.
MISCELLANEOUS PROVISIONS: THE ACCOUNT HOLDER MUST PROVIDE THE COMPANY WITH CURRENT CONTACT INFORMATION AT ALL TIMES. SUCH CONTACT INFORMATION MUST INCLUDE BUT IS NOT LIMITED TO: NAME, ADDRESS, E-MAIL, AND TELEPHONE NUMBER.
A waiver by the Company of any breach of any provision of this Agreement by Account Holder shall not operate as or be construed as a continuing or subsequent waiver thereof of any breach of any other provision thereof.
Account Holder shall not transfer or assign this Agreement without the prior written consent of the Company. The Company reserves the right to terminate Account Holder’s account under this Agreement at anytime without further obligation of the Company.
The Company takes no responsibility for any material input by others and not posted by the Company. The Company is not responsible for the content of any websites linked to the Company Network; links are provided as Internet navigation tools only. The Company disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party’s violation of this policy and, in general, the Agreement.
The Company is not liable for any damage, loss, expense suffered by the Account Holder in connection to the Company’s Services. There are no warranties, representations of any kind made by the Company, whether express or implied of any kind including a warranty of suitability of its Services for a particular purpose or any purpose. The Company does not offer any warranty of kind with respect to its Services under common law or statute, including loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by the Company.
It is absolutely forbidden to host any content that the Company deems to be pornographic or potentially exploitive of innocent parties in nature or otherwise contrary and adverse to the Company’s interests including file sharing networks, media streaming networks or Internet Relay Chat (IRC) networks on any of our servers. If Account Holder is found hosting this material, the Account Holder will be subject to immediate termination without refund.
- Responsibility for Content: Account Holder is solely responsible and liable for the content of any media type that may be stored on and served by the Company and the Account Holder’s account.
THE COMPANY RESERVES THE RIGHT TO AMEND THESE TERMS OF SERVICE, FROM TIME TO TIME, WITHOUT FURTHER NOTICE TO THE ACCOUNT HOLDER.