UltiHost "Terms and Conditions" - General Agreement
This Agreement is made between UltiHost and any and all persons, organizations, and entities having submitted billing information or otherwise on the UltiHost order form - said persons are hereinafter referred to as "Customer".
Submission of an order form as stated above or use of the UltiHost network indicates that you have read this Agreement and agree to be bound by this Agreement, the fee schedule and updates to this Agreement as posted on UltiHost's web site, or as emailed to the Customer from time to time. Site Design or the purchase of Domain Names may contain their own individual Agreements or Contracts, in addition to, or as replacement for this Agreement.
The parties hereto agree and bind themselves as follows:
1. SERVICES: UltiHost shall sell, and Customer shall purchase Services for the purpose of hosting a domain or web site on the Internet (hereinafter referred to as the "UltiHost network). In the case of hosting a web site, UltiHost shall provide the following services:
a. UltiHost shall provide a operational copy of the Web Hosting Software for use by Customer on the server. The provision of such software does not constitute any transfer of ownership of the software to Customer. Customer acknowledges that UltiHost may from time to time, as it deems necessary, upgrade, replace, remove or substitute software at its sole discretion.
b. UltiHost shall provide disk space for the Customer (as per the Customers Hosting Agreement) on the server containing the Web Hosting Software and connection through one or more links and nodes to the Internet. UltiHost shall have total discretion as to the physical location of the server as well as the software running on the server.
c. UltiHost shall provide technical support to Customer via electronic mail as necessary and will exercise reasonable care to ensure the proper operation and accessibility of the server over the Internet. UltiHost will also provide support to the Customer via electronic mail as necessary with regards to site design or domain name registration or ownership.
d. UltiHost shall commit to providing said hosting services no less than 90% of the time, but is not responsible for extreme circumstance beyond our control. Such extreme circumstance shall be handled on an item by item or occurrence by occurrence basis.
2. CUSTOMER: Customer agrees to comply with all applicable laws of the United States of America, all international laws and treaties, and the laws of the jurisdiction in which the Customer is located with regard to the transmission and use of information and content over the Internet or otherwise involving the UltiHost network.
a. Customer agrees not to use the Internet service for illegal purposes, to interfere with or disrupt other network users, network services or network equipment. Customer shall be liable for and shall indemnify and defend UltiHost from and against any claims in anyway arising from or related to (i) the alleged infringement of patent, trademark, design, copyright or any other intellectual property rights in relation to the Customer's use of the services and/or (ii) the inclusion of any information, photographs, art work or other content (including without limitation claims based on invasion of privacy, right of publicity, the Communications Decency Act of 1996, obscenity or pornography, and the violation of any statutes or ordinances or other laws) in relation to the Customer's use of the services.
b. Customer understands that Internet use, and related products and services provided under this Agreement, may require registration and related services that are public in nature.
3. RESPONSIBILITY OF CUSTOMER REGARDING END-USER: Customer agrees to certain responsibilities regarding End-users of Web Hosting Service.
a. "End-user" shall mean an individual who (1) provides at least his or her first and last name and email address as the Customer for the purpose of accessing the UltiHost Network or (2) has access via the Customer account to any portion of the UltiHost network, such as, but not limited to, employees, web site designers, etc.
b. Customer shall cause each End-user to be legally bound by UltiHost Terms and Conditions General Agreement, a copy of which is available at http://www.ultihost.com/terms.html. Customer shall not amend the General Agreement in any way that is unfavorable to UltiHost.
c. Customer agrees to perform due diligence in preventing fraudulent transactions made by End-users on the UltiHost network.
d. Customer agrees to the present existing ICANN Domain Dispute Policy. (See the ICANN web site for more information regarding Domain Name disputes.)
e. Customer shall prevent themselves or any employees or end-users from using UltiHost's company name, logo, trademarks or service marks, without the prior written consent of UltiHost.
f. Customer shall ensure that the end-user complies with section 4 of this agreement.
4. WEB SITE CONTENT: All services provided may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or City law is prohibited.
This includes, but is not limited to:
Copyrighted material; material UltiHost judges to be threatening or obscene, any materials that promote spam or spamming, mass mailings, junk mail, or MLM; any materials that may be deemed a 'get rich quick' scheme; material protected by laws governing trade secrets or any other statutes. UltiHost will be the sole arbiter of violations to this provision. Customer agrees to accept UltiHost's determination of content as final and authoritative. Customers in violations of these provisions may be immediately deactivated and shall not receive a refund. The following restrictions apply to all sites hosted by UltiHost:
a. Pornography and sex-related merchandising is prohibited on all UltiHost servers. This includes sites that may infer sexual content, or have links to adult content elsewhere.
b. Sites that promote any illegal activity, pirated software, Hacker programs or archives, Warez sites, or present content that may be damaging to our servers or any other server on the Internet are prohibited, as are any links to any such site or materials.
c. Spamming, or the sending of unsolicited e-mail, from UltiHost servers or using an e-mail address or domain that is maintained on our servers as reference is STRICTLY prohibited. UltiHost will be the sole arbiter as to what constitutes a violation of this provision.
d. Using Spam as an advertising method for sites hosted on UltiHost is strictly prohibited.
e. In most cases, other than standard CGI scripts etc., UltiHost does not allow programs to continually run in the background on our servers. You must contact UltiHost via email prior to running any background programs that run continually, or for the majority of an 8 hour workday and/or 24 hour period.
f. IRC and IRC bots are prohibited.
g. Gaming, betting, gambling and casino sites are prohibited.
5. PRICING: Customer shall pay UltiHost for the initial term and any renewal thereof at UltiHost's prevailing rates at the time the term or renewal begins.
6. PAYMENT: Payment shall be made to UltiHost in US dollars by check, money order or credit card. Checks should be made payable to "UltiHost". Mailed Payments shall be sent to UltiHost at the address as indicated by UltiHost via invoices or email.
a. Customer agrees to contact UltiHost by email prior to initiating a chargeback. Chargebacks received for an account may result in suspension of service until account has been reviewed and approved by UltiHost.
b. Payments made with credit cards that do not have the card owner's permission will not be accepted. Customer's account shall be immediately disabled and may be deleted at UltiHost's discretion. UltiHost shall be the sole and final arbiter of whether proper authorization was given for the transaction.
7. PAST DUE POLICY: UltiHost must receive Customer's payment by the due date indicated on the Customer's invoice or the Customer will be denied access to the UltiHost network and their account will be suspended. If Customer fails to make payment within 7 days of invoice date, Customer shall be permanently removed from the UltiHost network without notice. In the case of automated recurring billing on credit cards, any payments that are disputed will also result in account suspension. Customer is required to contact UltiHost via forms on the web site to make changes to, or cancel the hosting account.
8. REFUNDS: Due to the programming and account management involved, there are no refunds for Hosting, Chat, or Domain Name registration/renewals, with the exception of the 30-day money back guarnatee offered with hosting accounts. Refunds may be offered under extreme or unusual circumstance, but UltiHost is the only one that may determine that such a situation exists. Any refunds with regards to other services will also be handled on an "item by item" basis.
9. EFFECTIVE DATE AND TERM AND CANCELLATIONS: The Effective Date of this Agreement shall be the date the Customer acknowledged this Agreement, as indicated by the Customer signing up to a billing plan. The term of this agreement shall be that term specified by the customer on the order form at the time the order is placed. The term shall be automatically renewed, providing that neither party has provided the other party with a written notice not to renew for the forthcoming term. Customer must cancel service using the Account Cancellation Form on our HELP page. Notice of cancellation must be given at least ten (10) days prior to the expiration of the term.
10. TERMINATION: In addition to the other provisions of this Agreement, UltiHost reserves the right to suspend and/or terminate customer without notice at any time. Upon the expiration or termination of this Agreement for any reason, Customer shall:
a. Immediately inhibit all access to UltiHost through the Customer's Service and
b. Discontinue all uses of UltiHost trade names or Marks that may have been offered for use by written permission.
11. TRADEMARKS AND SERVICE MARKS: Customer shall not make any use of UltiHost's company name, logo, trademarks or service marks, without the prior written consent of the UltiHost. When such permission is granted by UltiHost, Customer shall only use such company name, logo, trademarks, and service marks in the manner and for the period agreed to by UltiHost.
12. DOMAIN NAME DISPUTE POLICY: All domain names registered, modified, or renewed through UltiHost by Customer or End-user are subject to the Uniform Domain Name Dispute Resolution Policy ("Dispute Policy") a copy of which is available at the ICANN web site. In addition, this Dispute Policy may be revised by UltiHost to include additional provisions. Any such revisions shall be posted on the UltiHost web site, or sent via email, and shall be effective as of the day of such posting or mailing. The Dispute Policy shall remain effective beyond the term of this Agreement and shall include the entire term for which the Customer's domain name is registered.
13. TAXES: Customer shall be responsible for and pay all taxes based upon the use of UltiHost, or the program storage media, or upon payments due under this Agreement including, but not limited to, sales, use, or value-added taxes, duties, withholding taxes and other assessments now or hereafter imposed on or in connection with this Agreement or with any sublicense granted hereunder, exclusive of taxes based upon UltiHost's net income. At no time shall the Customer hold UltiHost responsible for the collection and/or payment of taxes with regard to the Customers business or web site.
14. ENTIRE AGREEMENT: The parties hereto acknowledge that they have read this entire agreement and that this agreement and the attachments mentioned herein constitute the entire understanding and contract between the parties and supersedes any and all prior or contemporaneous oral or written communications.
15. CHANGE IN CONTROL. If there is a direct or indirect change in the effective voting control of Customer, or if Customer merges into or is acquired by a third party, or if Customer sells or transfers the Customer's Service or all or substantially all of the assets of the business unit containing the Customer's Service to a third party (a "Change in Control"), then Customer shall give prompt written notice thereof to UltiHost, and UltiHost at its option may, within 30 days after receipt of such notice, or immediately if no timely notice is given, terminate this Agreement by delivering written notice via email to Customer. Customer may request pre-approval from UltiHost for any such change of control. At no time may the Customer, who has agreed to this set of Terms and Conditions, transfer this agreement to a new third party. All accounts and/or agreements must be between UltiHost and the principal Customer.
16. ASSIGNMENT: UltiHost reserves the right to assign this Agreement, or any part thereof, at any time.
17. SEVERABILITY: If any provision of this agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
18. FORCE MAJEURE: No party shall be liable by reason of any failure to delay in the performance of its obligations due to strikes, riots, fires or explosions, acts of God, war, governmental action or any other cause that is beyond the reasonable control of such parties. UltiHost shall not be responsible or liable for direct or consequential damages caused by acts of God, acts of government, insurrection, riot, civil disturbance, outages suffered by electric utilities, or outages suffered by intermediary networks over whose facilities Customer' Web traffic is carried to and from the Web Server provided by UltiHost.
19. LIMITATION OF LIABILITY: UltiHost makes no warranty of any kind with respect to services and products provided under this Agreement, other than the commitment to 99% Hosting Service uptime unless circumstance as outlined above prevent UltiHost from meeting it's obligations. Customer agrees to comply with all applicable governmental laws in the use of the Web Server and ancillary services provided by UltiHost, and, in the event of any noncompliance, agrees to hold harmless UltiHost and its personnel and contractors from the consequences of such noncompliance. If any action in law or equity is instituted by either party hereto with respect to the subject matter of this agreement, UltiHost shall be entitled to recover, in addition to any other relief granted, reasonable attorney's fees, legal costs, and expenses reasonably incurred. UltiHost's liability for damages to Customer for any cause whatsoever, regardless of form of action, including negligence, shall not exceed an amount equal to the price of products and services purchased by Customer during the one month period preceding the event which caused the damages or injury.
20. JURSIDICTION: This Agreement shall be governed by the laws of the USA, and in the event any litigation must be initiated to enforce the terms of this Agreement, said legal action must be brought in the courts in the state as indicated by UltiHost at that time.
IN WITNESS THEREOF by submitting billing information, Customer hereby acknowledges consents to and enters into this Agreement with UltiHost.
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