Next Best Host TOS/AUP
We (“Hybricom, Inc. DBA Next Best Host”) agree to furnish services to the Subscriber, subject to the following TOS (Terms of Service). Use of our Service constitutes acceptance and agreement to our AUP as well as our TOS (Terms of Service). All provisions of this contract are subject to the TOS (Terms of Service) and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment. The below shall not be rendered by other terms than the included below.
1. Disclosure to Law Enforcement
The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber 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 the Subscriber. In addition we shall have the right to terminate all service set forth in this Agreement.
2. Service Rates
Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The Company reserves the right to modify the price of a subscription at anytime with prior notice to the client. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month’s service.
4. Payments and Fees
Service will be interrupted on accounts that fail to send payment by due date. Accounts will then be permanently deleted and disconnected without refund after seven (7) days unless contact is made to Company and special arrangements are made. Accounts that are not collectable by us may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a “Processing and Collection” Fee of not less than $50 nor more than $150. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
5. Refund and Disputes
All payments to us are nonrefundable unless cancellation of account occurs within the “60 Days Money Back Guarantee” period for services only including shared hosting and reseller accounts and not including dedicated servers and domain name registration or when our company finds a fit reason. All account cancellations/refunds must be submitted to our billing department within three (3) days before the next billing cycle. Accounts opting for refund within their “60 Days Money Back Guarantee” period will be cancelled and removed from our servers immediately after refunds are issued. The accounts of clients who wish to cancel their account and stop billing for future cycles will remain active until the end of the paid cycle. This includes the one time setup fee, if applicable, and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in our sole discretion is a valid charge under the provisions of the TOS and /or AUP, you agree to pay us an “Administrative Fee” of not less than $50 and not more than $150.
6. Failure to Pay
The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
7. Account Cancellation
Requests for canceling accounts must be submitted to our billing department within 3 days before the next billing cycle and no more than 10 days prior than payment period ends. Accounts opting for refund within their “60 Days Money Back Guarantee” period will be cancelled and removed from our servers immediately after refunds are issued. The accounts of clients who wish to cancel their account and stop billing for future cycles will remain active until the end of the paid cycle.
8. Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the company shall not be liable for any damages arising from such causes. In no event shall the company be liable for any special or consequential damages, loss or injury.
9. Support Boundaries
We provide technical support to our subscribers. We limit our technical support to our area of expertise. The following is our guidelines when providing support: we provide support related to your server or virtual site physical functioning. We do not offer tech support for application specific issues such as cgi programming, html or any other such issue. We do not provide technical support for YOUR customers. Support may be requested by opening a support ticket via our online helpdesk located at http://support.nextbesthost.com. If you are able to get online and have other questions, the answers may be in our Frequently Asked Questions or Support section – we encourage you to check there first. Lastly, the Help files in the program you are using may have the answer to your question so please do investigate these resources before contacting technical support.
10. SPAM and Unsolicited Commercial Email (UCE)
We take a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers may not use or permit others to use our network to transact in UCE. Customers may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
10a. Violation of the SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, we will initiate an immediate investigation (within 48 hours of notification). During the investigation, we may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, we may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, we reserve the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. We will notify law enforcement officials if the violation is believed to be a criminal offense.
10b. First violations of this policy will result in an “Administrative Fee” of $250 and your account will be reviewed for possible immediate termination. A second violation will result in an “Administrative Fee” of $500 and immediate termination of your account. Users who violate this policy agree that in addition to these “Administrative” penalties, they will pay “Research Fees” not to exceed $175 per hour that our personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account!
10c. As our Customers are ultimately responsible for the actions of their clients over our network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
10d. IMPORTANT NOTICE:
Anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.
11. IP Address Ownership
If we assign Customer an Internet Protocol address for Customer’s use, the right to use that Internet Protocol address shall belong only to us, and Customer shall have no right to use that Internet Protocol address except as permitted by us in our sole discretion in connection with the Services, during the term of this Agreement. We shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by us, and we reserve the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN’s new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
12. Bandwidth and Disk Usage
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the “Agreed Usage”). We will monitor Customer’s bandwidth and disk usage. We have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in our sole and absolute discretion. If we take any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, we may, at our sole discretion, collect a deposit, in an amount determined by us, against customer’s credit card on file with us.
13. System and Network Security
Users are prohibited from violating or attempting to violate the security of our Network. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. Client may be responsible for charges incurred to Next best Host. These violations include, without limitation:
i. Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access.
ii. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
iii. Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”.
iv. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
v. Taking any action in order to obtain services to which such User is not entitled.
13. Notification of Violation:
We are under no duty to look at each customer’s or user’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
First violation: Any User, which we determine to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at our discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.
Second Violation: Users that we determine to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
14. Suspension of Service or Cancellation
We reserve the right to suspend network access to any customer if in the judgment of the network administrators the customer’s server is the source or target of the violation of any of the other terms of the AUP or for any other reason which we choose. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer’s machines were suspended and may be responsible for financial losses to Next best Host.
We wish to emphasize that in agreeing to the Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies us for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to us or the bringing of any claim against us by any third-party. This means that if we are sued because of a customer’s or a customer of a customer’s activity, the customer will pay any damages awarded against us, plus all costs and attorney’s fees.
16. Miscellaneous Provisions
You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.
A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.
We take no responsibility for any material input by others and not posted to our web site by us. We are not responsible for the content of any other websites linked to us; links are provided as Internet navigation tools only. We disclaim 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.
We are not responsible for any damages your business may suffer. We do not make implied or written warranties for any of our services. We deny any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by us.
It is absolutely forbidden to host pornographic content or IRC servers on Virtual Server Accounts. Virtual Server Accounts found hosting this material will be subject to immediate cancellation without refund.
17. Responsibility for Content
You, as the customer, are solely responsible for the content stored on and served by your server.