Netnibble

AUP & TOS – Dedicated Servers

Netnibble Acceptable Use Policy (AUP) for Dedicated Servers

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In all portions of this document, Netnibble (The Company) also refers to all subsidiaries and trading names of the Netnibble Internet Service Group, including Server Interactive.

Scope. This Acceptable Use Policy (this “Policy”) governs the usage of products and services (the “Services”) of Netnibble Dedicated Hosting (”Netnibble”). This Policy is incorporated by reference into each contract Netnibble Dedicated Hosting enters into with a customer (”Customer”) for the use of such Services, and supplements, but does not supersede, any other contracts you may have with Netnibble. Netnibble may alter, modify or update this Policy at any time without notice. In addition, this Policy is incorporated by reference into the Terms and Conditions applicable to Netnibble’s web site so that no person who utilizes Netnibble’s web site (regardless of whether that person is a Customer) may take any action utilizing Netnibble’s web site that a Customer would be prohibited to take utilizing the Services.
Purpose. This Policy applies to each Customer and its employees, agents, contractors or other users of such Customer who obtain Services from Netnibble (each such person being a “User”). All Users are required to comply with this Policy to enhance the quality of the Services and to protect Netnibble’s customers, and the Internet community as a whole, from illegal, irresponsible, or disruptive Internet activities. Each User should use common sense and good judgment in connection with the Services. Parents or guardians should always supervise minors in using the Internet. Parents and guardians should remain aware at all times of what is on the Internet and how the minors under their care are using the Services and the Internet.
Prohibited Uses. Users may not:
Violations
Netnibble has the right to suspend or terminate any Customer pursuant to any valid DMCA complaint. Furthermore, Netnibble, in its sole discretion, may suspend or terminate, without notice, any User that Netnibble determines is a repeat copyright infringer.

d) Remedies. If Netnibble learns of a violation of this Policy, Netnibble will respond to the applicable Customer and may, in Netnibble’s sole discretion, take any of the following actions, in accordance with the severity and duration of the violation:
1. 1. Warning the Customer;
2. 2. Suspending the offending Customer from the Services;
3. 3. Terminating the offending Customer from the Services;
4. 4. Imposing fees or charges on the offending Customer account in accordance with the applicable service contract;
5. 5. Removing the offending content; and
6. 6. Taking other action in accordance with this Policy, the applicable service contract or applicable law.
Reservation of Rights. Netnibble reserves the right to involve and cooperate with appropriate legal authorities in investigations of claims of illegal activity involving Netnibble’s Services, Customers and other Users. Netnibble reserves all other rights to respond to violations of this Policy to the extent of applicable law and in accordance with any applicable contractual obligations. Netnibble may utilize technical means to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions and otherwise to enforce this Policy and each Customer agrees that Netnibble is authorized to monitor its communications through Netnibble’s network for such purposes.
Indemnification. User(s) will indemnify, defend, and hold harmless Netnibble, its affiliates, subsidiaries, officers, agents and employees from any and all claims, damages or lawsuits of any kind (including reasonable attorney fees) arising out of the User’s use of the Services and negligent or illegal acts of User(s), its employees or agents, including, but not limited to, claims, damages or lawsuits arising out the use of those services.

Terms of Service (TOS)

These Netnibble Terms of Service (this “Agreement”) and Netnibble’s Acceptable Use Policy (”AUP”) govern your purchase and use of all Netnibble services (collectively, the “Services”), as described in the Order Form(s) submitted by you and accepted by Netnibble. You must register and accept the terms of this Agreement and the AUP in order to use the Services. BY CLICKING ON THE “I AGREE” BUTTON, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED HEREIN BY REFERENCE. Netnibble may modify any of the terms and conditions contained in this Agreement and the AUP, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on the Netnibble web site (the “Site”). Your continued use of the Services following Netnibble’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify Netnibble of your termination of this Agreement in the manner described in Section 1.1 below.

Term and Payment for Services.

Term. This Agreement will be for a Term of 1 month from the date the Services are first provided by Netnibble. This Agreement will be automatically renewed (the “Renewal Term”) at the end of the Initial Term or any Renewal Term for a period of thirty (30) days unless you provide Netnibble with written notice of termination at least 30 days before the end of the Initial Term or Renewal Term, whichever is then applicable. To schedule your account for cancellation, please login to the Netnibble Client Services portal, login to your account, select the service you wish to cancel, and press the “Cancel Service” button. This will ensure that your account is processed for cancellation and will generate an email that will be sent to you regarding full details of your request as well as the offline date of your server. We cannot be held responsible for continued invoicing if the above method is not followed.

Termination. This Agreement may be terminated:
(i) by you or Netnibble during any Renewal Term, without cause, by giving the other party 30 days prior written notice;
(ii) by Netnibble in the event of nonpayment by you as provided in Section 1.4 below; and
(iii) by Netnibble, at any time, without notice, if, in Netnibble’s sole judgment, you are in violation of any terms or conditions of the AUP. If you terminate this Agreement, or if Netnibble terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to Netnibble under this Agreement.

Charges. You will pay all charges for your use of the Services at the then current Netnibble prices. You are responsible for paying all federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to the Services, other than taxes based on Netnibble’s net income. You will pay $.50/GB for every gigabyte used over the bandwidth allotment during your 30 day billing cycle.

Payment. You will pay all charges for the first month of service in advance on the first day of the Initial Term.
You will pay all subsequent charges for Services in advance on the aniversary day of each month according to the then current price for the Services. You authorize Netnibble to charge your credit or debit card to pay for any charges that may apply to your account. You must notify Netnibble of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Netnibble from charging your account. Your failure to fully pay any fees and taxes within 48 hours from the applicable due date is a material breach of this Agreement, justifying Netnibble to suspend its performance and terminate this Agreement. If Netnibble terminates for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to Netnibble under this Agreement. You are responsible for any costs Netnibble incurs in enforcing collection, including reasonable attorneys’ fees, court costs and collection agency fees. Toreinstate Services, you must pay for 3 months of Service in advance on the first day such Services are reinstated and any fees associated with reinstating Services.

Requirements for using Microsoft software. Subscribers are prohibited from allowing more than five (5) authenticated users of the Microsoft Windows Server Operating Systems under Microsoft licensing terms and could create liability issues with Microsoft if violated.

Refund and Disputes. All payments to Netnibble are nonrefundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in Netnibble’s sole discretion is a valid charge under the provisions of this Agreement and/or AUP, you agree to pay Netnibble an “Investigation Fee” of $100.00.

Use of Services.

Acceptable Use Policies. The AUP governs the general policies and procedures for use of the Services. The AUP is posted on the site at (or such other location as Netnibble may specify) and may be updated from time to time. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS TO THE TERMS. NETNIBBLE MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT.

Domain Names. Upon registering your domain name, you are bound by the terms of the registration service’s then current domain name policy and the policies of the national DNS registration authorities. Netnibble will not refund any fees you paid with respect to the registration of a domain name you are unable to use. All new webhosting accounts involving new domains will be set up and entered into our DNS servers within 3 to 5 business days. Due to unforeseen complications, however, this process may sometimes require up to 7 business days. If the new domain is registered by you, there will be no handling fee. If the domain is registered by Netnibble on your behalf a handling fee will be incurred. New webhosting accounts which involve the transfer of a domain from another provider to Netnibble will require a minimum of seven (7) days to be set up and entered into our DNS servers. In some cases, such transfers may take up to sixty (60) days. Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may take. If the transfer of the domain is done by Netnibble on your behalf, a handling fee will be incurred. If you cancel service during the transfer period for any reason, all charges are considered earned.

Security. You are solely responsible for any security breaches affecting servers or accounts under your control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system,Netnibble will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting Netnibble or any of its other customers.

Backups. You are solely responsible for any and all backups of your data. Netnibble may not be held accountable for any loss of data due to hardware or software failure. Netnibble highly recommends daily backups for your protection.

Intellectual Property Rights. Your Warranties and Representations to Netnibble. You warrant, represent, and covenant to Netnibble that:
(a) you are at least 18 years of age if an individual,
(b) you possess the legal right and ability to enter into this Agreement;
(c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines, including the AUP; and
(d) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

IP Numbers. Netnibble will maintain and control ownership of all Internet protocol (”IP”) numbers and addresses that Netnibble may assign to you. Netnibble may, in its sole discretion, change or remove any and all IP numbers and addresses.

Netnibble may provide you access to other third party software and/or services (”Third Party Products”) through reseller relationships Netnibble has established with certain commercial vendors, including without limitation, Microsoft Corporation (”Third Party Vendors”). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by Netnibble and not by the Third Party Vendor. Neither Netnibble nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM NETNIBBLE OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NETNIBBLE NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND NETNIBBLE WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.

You shall not
(i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product or that appear during use of any Third Party Product; or
(ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Enforcement Actions. Netnibble reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if in the sole judgment of Netnibble your server is the source or target of any violation of the AUP or for any other reason which Netnibble chooses. If inappropriate activity is detected, all of your accounts in question will be deactivated until an investigation is complete. Prior notification to you is not assured. In some cases, law enforcement will be contacted regarding the activity. These rights of action, however, do not obligate Netnibble to monitor or exert editorial control over the information made available for distribution via the Services. If Netnibble takes corrective action because of a possible violation, Netnibble will not refund to you any fees you paid in advance of the corrective action.Disclosure Rights. The AUP specifically prohibits the use of our service for illegal activities. Therefore, you agree that Netnibble may disclose any and all of your information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to you. In addition, Netnibble shall have the right to terminate all service set forth in this Agreement.Disclaimed Warranties. Netnibble exercises no control over, and accepts no responsibility for, the content of the information passing through Netnibble’s host computers, network hubs and points of presence, or the Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. NETNIBBLE DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. NETNIBBLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

Limitation and Exclusion of Liability.

Limitations. IN NO EVENT WILL NETNIBBLE OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER NETNIBBLE NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO NETNIBBLE’S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF NETNIBBLE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF NETNIBBLE AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO NETNIBBLE UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY NETNIBBLE UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE NETNIBBLE AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.

Interruption of Service. Netnibble and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, Netnibble is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure).

Indemnification. In agreeing to the Netnibble AUP and this Agreement, you agree to indemnify, defend and hold harmless Netnibble, its employees, directors, partners, representatives and affiliates, for any violation by you or your customers of the AUP or this Agreement that results either in loss to Netnibble or the bringing of any claim against Netnibble by any third-party. For example, if Netnibble is sued because of your or your customer’s activity related to the Services, you will pay any damages awarded against Netnibble, its employees, directors, partners, representatives and affiliates, plus all costs and attorney’s fees.

MISCELLANEOUS PROVISIONS.

Netnibble and you agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or your customers.

THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Netnibble, and any attempted assignment or delegation without such consent will be void. Netnibble may assign this Agreement in whole or part. Netnibble also may delegate the performance of certain Services to third parties. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. You and Netnibble are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Netnibble. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.

Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.