Wyenet Services Terms of Service

Wyenet Services, providing attentive web hosting services since 1999, strives to lead the hosting industry in business ethics and privacy protection of its customers.

Terms of Service

(rev. 10/29/2010)

BY USING OUR SERVICES YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS

This Terms of Service Agreement ("Agreement") establishes your obligations to Intervision, LLC, DBA wyenet.com ("WYENET SERVICES") for the variety of services, products and facilities that we provide to you, the customer of WYENET SERVICES. This Agreement also sets forth WYENET SERVICES's commitments to you.

In this Agreement, the words "you" and "your" mean you, the customer of WYENET SERVICES, and applies to all persons and entities that use the services, products or facilities of WYENET SERVICES. The words "we", "us" and "our" mean WYENET SERVICES. The term "Services" means any and all services, products and facilities offered or provided by WYENET SERVICES. By selecting or using our Services you have agreed to establish an account with us and pay us for Services in accordance with this Agreement. You also agree that when you use our Services or your account, or permit or allow another person or entity to use our Services or your account (even if you or we were not notified of such use, and without regard to whether such use was authorized or unauthorized by you or us) you remain responsible and obligated to pay WYENET SERVICES for such use, including any purchase, change in, or termination of Services. WYENET SERVICES reserves the right to refuse Services to anyone at any time.

WYENET SERVICES reserves the right to modify the terms and conditions under which it provides Services to you. By accepting the terms of this Agreement and each time that you access or use our Services, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement, including all rules of use that are in effect at the time. It is your responsibility to access these Terms of Service regularly to ensure that you remain aware of the terms and conditions that govern your use of the Services and of any changes to this Agreement. If you do not agree with any revision to this Agreement, you must contact us immediately and terminate your account before your next use of our Services. Notice of your termination will be effective on receipt and processing by us. You agree that, by continuing to use the Services following notice of any revision to this Agreement or change in Services, you accept and commit to abide by this Agreement as revised. You agree to be bound by the Terms of Service in effect at the time of your use of Services.

You affirm that you are at least eighteen years old or, if younger, of minimum legal age to enter into a valid and binding contract for our Services. You agree that we may suspend access to our Services or, in our sole discretion, terminate this Agreement if we conclude that the information that you provided to register for our Services is false or materially misleading.

1. FEES, PAYMENT AND TERM

As consideration for the Services, you agree to pay us the applicable service fees http://www.wyenet.com/legal/fee_schedule.html ("Fees") for all Services that you have selected or use. All Fees are fully earned when due and are nonrefundable. As further consideration for the Services, you agree to: provide current, complete and accurate information about you as required by the registration process, including current credit card information, credit card authorization and contact information (collectively "Customer Account Information")., and maintain and update this Customer Account Information as needed to keep it current, complete and accurate throughout the "Term". The "Term" of this Agreement is from your first selection or use of our Services, whichever is earlier, through the last to occur of (i) your use of any Services, (ii) the expiration (see 3 below re automatic renewal) of the period of Services that you have selected (e.g. monthly or annual service).

WYENET SERVICES reserves the right to terminate this Agreement, your account and access to our Services for any reason or for no reason, with or without notice. Absent our termination of this Agreement or an express written instruction from you to close your account and terminate the Services that you have selected (see 4 below re termination of automatic renewal), you understand and agree that Fees will continue to be incurred by you and you hereby agree to pay all such Fees when due. You acknowledge that the nature of the Services furnished and the initial rates and charges applicable to such Services have been communicated to you. You are aware that WYENET SERVICES may change or add Fees at any time. By accepting the terms of this Agreement and each time that you access or use our Services, you acknowledge that you have read and agree to pay the Fees in effect at the time of such use. It is your responsibility to access the Fee Schedule regularly to ensure that you remain aware of the Fees that govern your use of the Services and of any changes to the Fees.

2. BILLING

During the Term, the first date on which you purchase any of our Services is your Billing Anniversary Date. If you have purchased a package that is billed monthly, your credit card will be charged every month and your Billing Anniversary Date will occur every month. If you have purchased a package that is billed yearly, your credit card will be charged every year and your Billing Anniversary Date will occur every year. Changes to the Fee Schedule will be effective immediately, except that changes in Fees for Services you have prepaid will be effective on the next Billing Anniversary Date. Additional fees and charges incurred by you under this Agreement will generally be charged in the period following the event resulting in the charge.

3. AUTOMATIC RENEWAL

For ease of use and in order to provide uninterrupted service, among other reasons, you hereby instruct us to renew and extend your Services automatically on each Billing Anniversary Date until the next Billing Anniversary Date, unless you notify us in writing in accordance with 4 below at least 5 business days in advance of the next Billing Anniversary Date.

4. TERMINATION OF AUTOMATIC RENEWAL

If you desire to terminate this Agreement and the Services you are receiving, or if you desire not to have your monthly or annual Service renewed, you must terminate your account by completing and submitting our cancellation form: http://www.wyenet.com/cancellation.html. All termination instructions must be submitted to us in writing. Our Fees are nonrefundable and terminations do not result in a refund. A termination will result in the deactivation of Services and removal (and ultimately the deletion) of your user materials from our systems. All Fees are fully earned when due and are nonrefundable. All sections shall survive the termination of this Agreement. WYENET SERVICES does not accept and will not recognize cancellations by email or any means other than via the cancellation form. To cancel your account you must use the cancellation form on the website: http://www.wyenet.com/cancellation.html.

5. BILLING AND CHARGEBACKS

Our Fees are payable and due immediately on your Billing Anniversary Date. WYENET SERVICES reserves the right to terminate your access to Services immediately and without notice to you in the event of any non-payment of our Fees. There is no "grace period". All "bounced" or NSF checks, "chargebacks" or reversals of credit card charges and other canceled or refused payments of our Fees (collectively "Nonpay") may result in the immediate termination of Services and the closure of your account. We may also report any Nonpay to the credit monitoring agencies. In the event that your Services are terminated due to nonpayment or a Nonpay, you must pay us all monies due to bring your account current, plus if you desire renewed access to our Services, you will be charged a $40.00 reactivation fee to restart your account, as well as the costs of any bank and other charges that we incur or that we have incurred as a result of a Nonpay. You agree and warrant to us that the Customer Account information that you provide to us to register for our Services, including contact and credit card information, is accurate and complete. You agree to contact us at accounts@support.intervision.net and update such information as and when such changes occur in order that we have current and complete information for your account at all times.

WYENET SERVICES is not responsible for attracting visitors to your website. It is the responsibility of the person renting the server or website hosting service to administer and operate their sites and assigned server. Billings for websites that are unpaid for 5 calendar days may, without further advance notification, result in the reassignment of the server IP addresses that you have been using.

6. SERVICE CHARGES

We will waive our $10.00 service charge for upgrades and expansions of Services. You will be charged the $10.00 service change fee each time you downgrade your website or hosting package to a lower priced package. Each Domain Name System ("DNS") change will incur a service charge of $10.00. There is a service charge of $25.00 per domain for each domain transferred out of your WYENET SERVICES account. All late payments accepted by us that are more than 5 calendar days past due will incur an additional $20 service charge. Additional charges may also apply so please access the Fee Schedule regularly to ensure that you remain aware of the Fees that govern your use of the Services and of any changes to the Fees.

7. BILLING FOR ADDITIONAL BANDWIDTH

You agree to pay WYENET SERVICES for excess file transfer ("bandwidth") usage. Each customer is allocated a set amount of file transfer usage with their hosting service depending on the package level purchased. If you exceed the amount of file transfer usage you receive as part of your package you will be billed $30 for each MB used that is over your allocation. If bandwidth usage is deemed by us, in our sole discretion, to exceed your allotment, the overage will be determined (by tracking the amount and size of the files transferred from your account and comparing it to your allocation). Excess bandwidth usage charges are incurred automatically and without further advance notification. If you are billed monthly for our services the overage charge will generally be attached to your monthly credit card charge. If you are billed yearly for our Services the overage will generally be billed to your credit card the month following your overage. Excess bandwidth usage determinations are made at the sole discretion of WYENET SERVICES.

Misuse of system resources, including but not limited to employing posts or programs which consume excessive CPU time or storage space, permitting use of mail services, mail forwarding capabilities, POP accounts, or auto responders (other than for your own account), resale of access to CGI scripts installed on WYENET SERVICES's servers, or attempting to use a single customer account for third party websites by allowing more than one domain pointer to be used to reference pages within your site is not permitted. WYENET SERVICES shall determine, in its sole discretion, whether you have caused high server usage level.

8. UNLAWFUL USE

Your use of WYENET SERVICES Services is subject to all applicable local, state, national and international laws and regulations. You agree that WYENET SERVICES servers will be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation is prohibited. This prohibition includes, but is not limited to unlawful use or distribution of copyrighted material, trademarks, trade secrets and other intellectual property rights used without permission or proper authorization, material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. You agree to indemnify and hold WYENET SERVICES harmless from and against all claims, demands, causes of action, losses, damages and injuries of all types that result from your unlawful or alleged unlawful use of WYENET SERVICES, its assets or servers.

9. SECURITY

Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of prohibited activity include any unlawful act, including but not limited to: unauthorized access or use, probing or scanning of systems security or authentication measures, data, or traffic; intentional interference with service to any user, host, or network including, without limitation, spamming, "flooding"; deliberate attempts to overload a system; broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or newsgroup posting.

10. CUSTOMER CONDUCT

All attempts to undermine or cause harm to a WYENET SERVICES servers, assets or means of data transmission, tracking or authentication protocols are prohibited. You are solely responsible for the content of your transmissions through WYENET SERVICES. You agree: (i) not to engage in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities, (ii) not to engage in activity that violates privacy, publicity, or the rights of others, (iii) not to export technical data from the United States through WYENET SERVICES in violation of export control laws, (iv) not to use WYENET SERVICES for illegal purposes, (v) not to interfere or disrupt networks connected to WYENET SERVICES, (vi) not to transmit through WYENET SERVICES any unlawful, harassing, libelous, abusive, threatening, harmful, or otherwise legally objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. You agree not to intentionally interfere with another customer's use and enjoyment of WYENET SERVICES's Services. You agree that WYENET SERVICES may, at its sole discretion, immediately and without further advance notice terminate your Service if, in our sole discretion, your conduct fails to conform to this or any other provision in this Agreement regarding customer conduct (see also WYENET SERVICES's Content Policy http://www.wyenet.com/legal/privacy.html).

11. ACTIONS BY WYENET SERVICES

You agree that WYENET SERVICES may, without further advance notice, remove or block access to customer content or elect to terminate your account upon receipt of a notice of infringement of intellectual property laws. If WYENET SERVICES becomes aware of a violation or alleged violation of this Agreement, WYENET SERVICES may react immediately or may initiate an investigation. During the investigation, WYENET SERVICES may restrict your access in order to prevent potentially unlawful or unauthorized activity.

12. CHANGES TO YOUR ACCOUNT

If you desire to change any of your Customer Account Information, you must use your Account Identifier and Password. Please safeguard your Account Identifier and Password from any unauthorized use. In no event will we be liable for the unauthorized use or any misuse of your Account Identifier or Password.

13. ANNOUNCEMENTS

You agree that from time to time we may distribute information to you that we think may be of interest to our customers or that we believe is pertinent to the quality or operation of our Services or our service partners offerings or services. These announcements may include notices describing changes, upgrades, new products and services offered by WYENET SERVICES and/or third parties.

14. BACKUPS

YOU ARE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ALL FILES AND DATA THAT YOU CONSIDER VALUABLE OR IMPORTANT! While WYENET SERVICES will strive to keep its services running reliably, WYENET SERVICES is not under any circumstance responsible for any loss of files or data (whether permanent or temporary). It is your responsibility to ensure for yourself that you have backed up all files and data - and that your backup files and backup protocols work. You are also responsible for having adequate business insurance to cover you in the event of any loss, and we strongly recommend you contact an insurance agent or broker to obtain or review the adequacy of such insurance for your needs. WYENET SERVICES is not responsible for and will not reimburse or pay you for any loss or damage that you might experience due to the absence or failure of any backups or backup systems, hacker attacks, denial of service attacks or other malign activates. If your business relies on your website for commercial purposes, it is your responsibility and particularly important to ensure that you have proper protective measures and backup systems in place. It is your sole responsibility to backup and maintain a local, usable copy of your website and all other data that you consider important.

15. LIMITATION OF LIABILITY

YOU AGREE THAT OUR ENTIRE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY SERVICES PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT, AS WELL AS FOR ANY BREACH OF THIS AGREEMENT IS LIMITED TO THE AMOUNT YOU PAID US FOR SUCH SERVICES. YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR INABILITY TO USE ANY OF THE SERVICES OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES. IF THE APPLICABLE JURISDICTION OF ANY DISPUTE IS THE ONE FROM WHICH YOU ACCESSED OUR SERVICES AND IT DOES NOT ALLOW SUCH A LIMITATION OF LIABILITY (AND THE CHOICE OF LAW PROVISION IN SECTION 24 BELOW IS NOT ENFORCED FOR ANY REASON), THEN YOU AGREE THAT OUR LIABILITY IS LIMITED TO $1,000 OR TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH JURISDICTION.

YOU AGREE THAT OUR COMMITMENT TO YOU WITH RESPECT TO THE DELIVERY OF SERVICES IS THAT WE WILL USE OUR BEST EFFORTS TO SUPPLY YOU WITH SERVICES OF A GOOD QUALITY, BUT YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT PROMISE OR COMMIT TO DELIVER SERVICES THAT ARE FLAWLESS. CONSEQUENTLY, WE DISCLAIM AND YOU ACKNOWLEDGE THAT WE DISCLAIM ANY LIABILITY FOR DAMAGE OR LOSSES RESULTING FROM: (I) ACCESS DELAYS OR ACCESS INTERRUPTIONS; (II) DATA LOSS, NON-DELIVERY OR DATA MIS-DELIVERY; (III) ACTS OF GOD OR NATURE; (IV) USE OR MISUSE OF YOUR ACCOUNT OR YOUR ACCOUNT IDENTIFIER OR PASSWORD; (V) ERRORS AND OMISSIONS THAT ARE NOT EXCLUSIVELY CAUSED BY INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF WYENET SERVICES; (VI) DAMAGE TO OR INTERRUPTION OF YOUR WEBSITE; (VII) INJURY TO YOUR COMPUTER HARDWARE, COMPUTER SOFTWARE. FURTHER, YOU AGREE THAT WYENET SERVICES SHALL NOT UNDER ANY CIRCUMSTANCE BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF OR RESULTING FROM INTERRUPTION OF YOUR BUSINESS, BUSINESS RELATIONS OR TO THE BUSINESS OF ANY PERSON OR ENTITY WITH WHICH YOU DO BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ALERTED TO OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT OTHER THAN INTENTIONAL MISCONDUCT BY US SHALL OUR MAXIMUM LIABILITY TO YOU EXCEED ONE THOUSAND ($1000.00) DOLLARS.

16. INDEMNITY

YOU AGREE TO INDEMNIFY, AND HOLD US, OUR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, FOR YOUR USE OR MISUSE OF OUR SERVICES AND ASSETS, AND FOR ANY BREACH BY YOU OF ANY PROVISION OF THIS AGREEMENT.

17. DISCLAIMER OF WARRANTIES

YOU AGREE THAT OUR SERVICES AND ACCESS TO OUR SERVICES IS PROVIDED ON AN "AS IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. YOU ALSO AGREE THAT OUR SERVICES AND ACCESS TO OUR SERVICES ARE SUBJECT TO, AMONG OTHER DEFECTS AND DEFICIENCIES, DISRUPTION, INTERRUPTION, DEGRADATION, TIME LAGS AND IMPERFECT DATA TRANSMISSIONS. YOU ACKNOWLEDGE AND AGREE THAT OUR SERVICES ARE PROVIDED TO YOU WITH THE EXPLICIT UNDERSTANDING OF THE LIKELIHOOD OF THESE DEFECTS AND DEFICIENCIES AFFECTING YOUR SERVICES. THEREFORE, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY AND SPECIFICALLY DISCLAIM THAT THE SERVICES WILL MEET YOUR GENERAL OR SPECIFIC REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. WE MAKE NO WARRANTY AND SPECIFICALLY DISCLAIM ANY GENERAL OR SPECIFIC RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH SUCH SERVICES, AND THAT DEFECTS OR DEFICIENCIES IN THE SERVICES WILL BE CORRECTED TIMELY OR AT ALL.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL TRANSMITTED AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE EXCLUSIVELY RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY TO YOUR COMPUTER HARDWARE, SOFTWARE OR ANY OTHER ASPECT OR COMPONENT OF YOUR COMPUTER SYSTEM, WEBSITE OR DATA STORAGE OR RETRIEVAL METHODS AND DEVICES. LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. ANY SUGGESTION, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US IS GENERAL INFORMATION ONLY AND IS NOT ACCOMPANIED BY ANY WARRANTY OF ANY TYPE WHATSOEVER. IF THE APPLICABLE JURISDICTION IS THE ONE FROM WHICH YOU ACCESSED OUR SERVICES AND IT DOES NOT ALLOW SUCH A BROAD DISCLAIMER OF WARRANTIES (AND THE CHOICE OF LAW PROVISION IN SECTION __ BELOW IS NOT ENFORCED FOR ANY REASON), THEN YOU AGREE THAT OUR DISCLAIMER OF WARRANTIES IS ENFORCEABLE AGAINST YOU TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION.

You further understand and agree that by registering or reserving your chosen domain name with us, that you do not obtain any additional rights or immunities from objection to the registration, reservation, or use of such domain name.

18. RIGHT OF REFUSAL

WYENET SERVICES reserves the right to refuse Services to anyone for any reason or no reason at any time. Therefore, we reserve the right to refuse to host your website, register you for other Services or allow you access to our Services You agree that you do not have any expectation of continuous or uninterrupted Services or access to such Services and that we shall not be liable to you for any loss, injury or damage that may result from our refusal to host your website or use or access our Services.

19. SEVERABILITY

You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed, consistent with applicable law, to preserve as much of the terms and provision and its meaning as to reflect the expressed intentions of the parties, and all remaining terms and provisions will remain in full force and effect.

20. NO JOINT VENTURE

Nothing contained in this Agreement or in our provision of Services to you shall be construed or argued as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

21. NON-WAIVER

Our failure(s) to require performance by you of any provision of this Agreement shall not diminish or affect our right to require performance by you in accordance with this Agreement at any time thereafter. Neither shall our express or implicit waiver of a violation or breach of any term or provision of this Agreement be construed or argued to be a waiver of our right to enforce any term or provision of this Agreement.

22. NOTICES

Notices shall be effective only if given in writing. Notices may be given by personal service (effective upon service), first-class mail postage prepaid to the billing address associated in our records with your account (effective on the third business day after mailing), overnight mail by a nationally recognized overnight delivery service (effective the first business day after deposit with the service), or by email (effective the first business day after the email is sent). E-mail notices will be sent to you at the email address you provided in your registration application or as updated from time to time in our billing system. Email notices sent to us must be sent to accounts@support.intervision.net to be effective as notice to us.

23. INTEGRATED AGREEMENT

You agree that this Agreement, together with the content rules and policies http://www.wyenet.com/legal/fee_schedule.html and privacy policy http://www.wyenet.com/legal/privacy.html published by us are the complete and exclusive agreement between you and us regarding our Services. This Agreement supersedes all prior agreements and understandings between you and us.

24. CALIFORNIA LAW AND VENUE

This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without application of conflicts of laws principles. You agree that any action between us must be brought in state or federal court in Los Angeles, California and you agree to submit to the jurisdiction of such courts in the event of any such legal action.

25. HEADINGS

Section headings are for ease of reference only and are not to be used to explain or construe any term or provision of this Agreement.

26. CHAT ROOMS

WYENET SERVICES does not allow clients to install their own chat rooms. Client chat rooms degrade our Services. Therefore, while WYENET SERVICES may provide chat rooms for an additional fee (contact accounts@support.intervision.net for pricing and availability) we will do so only if server performance remains unhindered.

27. BACKGROUND PROGRAMS

WYENET SERVICES may, in its sole discretion, allow programs that do not degrade our Services to run continually in the background. However, these programs must be approved by us on an individual basis and an extra charge may be incurred based on system resources used and operational demands. If you desire to run any background programs you must contact us at accounts@support.intervision.net before doing so. WYENET SERVICES does not permit Internet Relay Chat (IRC) or IRC "bots" of any kind, no matter how small to be operated on our servers.

28. MAIL CONFIGURATIONS

WYENET SERVICES supports email connectivity to our servers directly. This means you specify POP3 and SMTP server names in your email client to connect to us directly to receive email on behalf of your domain. Any requests for MX record changes to support any other configuration will result in additional charges.

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