This Terms of Service (TOS) agreement is an agreement between WinHost ("WINHOST", "us", "we", "our") and you ("Customer", "Client", "Member", "you", "your”, "they"). Use of any WINHOST services constitutes acceptance and agreement to this Terms of Service (TOS) agreement as well as the WINHOST Acceptable Use Policy (AUP) and Privacy Policy.
WINHOST reserves the right to terminate this TOS for any reason or no reason. WINHOST reserves the right to refuse service to anyone.
Service
The features and details of the Services governed by this TOS are described on our website at "WinHost.com". Throughout this TOS, the aspects of the Services provided to you by WINHOST, are referred to together as the "Service." Certain parts of the Service may be provided by third party vendors. These third parties may have reserved the right to make changes, including material changes, to their products and incorporated into our Service. If a third party makes a change to its products, you may not terminate this TOS based on such a change, even if it materially affects the Service.
Contact Information
As part of providing you with the Service, you are required to provide us with accurate and up-to-date information when setting up your account, and during the course of our business relationship. We will communicate with you by e-mail about the Service from time to time. You agree to provide us with an e-mail address that is active and monitored on a daily basis. WINHOST has no responsibility, or liability, for interruptions in the Services that we provide, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with valid contact information. The contact in our records is considered by us to be our customer. If you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records accurately reflect the correct ownership and control of the Service.
Service Changes
WINHOST reserves the right to amend its service offerings and add, delete, suspend, or modify the Service and Service fees at any time at its sole discretion, and reserves the right to determine whether and when any such changes apply to both existing and future customers.
Term
Customer agrees to a month to month contract term for WINHOST Service. The month to month contract is automatically renewed each month in perpetuity unless the Service is cancelled by the Customer.
Monthly Service Fees
The date of the initial online order for WINHOST Services, will set the monthly Account anniversary date for all future billings. Some adjustments of the anniversary date will be performed should the online order date occur on the 29th, 30th, or 31st of the month. Services are provided on a prepayment basis and fees for services will be billed on the anniversary date of each month. All fees are fully earned when due and non-refundable when paid. Customer agrees that WINHOST will charge Service Fees to the credit card supplied by Customer. All payments shall be made in US Currency. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder. If applicable, all taxes will be paid by the Customer.
One Time Service Fees
Any one time service fees are due and payable at the time they are incurred and are non-refundable.
Annual Service Fees
Certain services such as Domain Name registration are on an annual billing cycle which can be out of sync with the monthly anniversary date. The customer is responsible for logging into their control panel and renewing these services manually. WINHOST will e-mail reminder notices to the customer regarding the renewal of these services. Customer understands that Domain Name Registration fees and any other annual service fees are non-refundable.
New Domain Name Registration
Under this TOS, the Customer has the option, through the Order Form or as part of service activation within the Control Panel, to request WINHOST to register a new domain name on behalf of the Customer. Customer understands and acknowledges that WINHOST is not a Domain Registrar and that WINHOST will register new domain names through a Domain Registrar partner selected by WINHOST. Customer understands that the domain registration process requires WINHOST to pass Customer Information to the Domain Registrar partner and such information may become public information. WINHOST will not be responsible if a domain name is not available for any reason. WINHOST will not be responsible for any infringement of any third party rights caused by its domain registration on behalf of Customer. For such new domain name registrations, Customer shall comply with the then current Domain Name Terms and Conditions posted at our current domain registrar partner's website at
http://www.opensrs.com/resources/contracts/exhibita.htm and ICANN policy posted at
http://www.icann.org/dndr/udrp/policy.htm.
Service Credits
Should any service credits be issued to the Customer account, they will be used to offset hosting fees assessed in the future. Service credits are not cashable and cannot be transferred to other accounts.
Fraud Prevention
WINHOST uses various technologies to screen orders for fraud prevention. Each order for new Service is subject to our fraud prevention screening. WINHOST is not obligated to provide Service to Customer until Customers comply with all fraud prevention program requests. Any unfulfilled requests may result in account suspension and/or account cancellation. Customers may still be responsible for any Third Party Service that they may subscribe to. WINHOST is not responsible, and Customer agrees to hold WINHOST harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.
Cancellation
If Customer wishes to cancel Service for any reason, the Customer may log into their Control Panel at
https://cp.winhost.com and use the Cancellation Request link to cancel Service of a particular Site. Cancellations are effective at the end of the current billing period (Cancellation Date). For security and privacy, all customer files, data, and e-mail remaining on WINHOST servers after the cancellation date will be destroyed and unrecoverable for security and privacy reasons. It is the Customer's responsibility to backup their files and data and download their e-mail prior to requesting Cancellation. WINHOST is not responsible, and Customer agrees to hold WINHOST harmless from, any liability or damage that Customer or any third party may sustain, should customer files and data be destroyed after site cancellation.
Transferring Away Domain Names
Abiding by Domain Registrar policies, you are free to move domains that were registered through WINHOST to other domain registrars. A domain name unlock tool is made available in the control panel. The customer understands that unlocking a domain from our control panel is an irreversible action. Once you unlock a domain, WINHOST will not renew the domain and, if you wish to keep this domain active, you must move the domain to another domain registrar of your choice.
Refunds and Disputes
All WINHOST services are non-refundable. Customers seeking to resolve any billing errors are required to open a billing ticket through the Support Portal at
https://support.winhost.com. The Customer agrees not to issue chargebacks for any credit card payments. A chargeback of payment for services rendered will result in an additional charge of $150.
Non-Payment
All payments are due in full on the monthly anniversary date. Failure to remit payment for services on the monthly anniversary date is a violation of this TOS. Failure to remit payment for ten (10) consecutive days, including the anniversary date, shall result in a suspension of public access to Customer services. Failure to remit payment for services within twenty-five (25) consecutive days, including the anniversary date, shall result in termination of access to the service network and all services shall be reclaimed. All Customer files and data remaining after twenty-five (25) days of non-payment will be destroyed and unrecoverable for security and privacy reasons.
CPU Usage
Customer agrees that they will not use excessive amounts of CPU processing on any of WINHOST's servers. Any violation of this policy may result in remedy action by WINHOST, which may be taken in WINHOST's sole discretion with or without notice
Bandwidth and Disk Space Usage
Customer agrees that bandwidth and disk space usage shall not exceed the number of megabytes per month ordered by Customer. WINHOST will monitor Customer's bandwidth and disk space usage. WINHOST shall have the right to take remedy action if Customer's bandwidth or disk space usage exceeds the Agreed Usage. For your convenience, a Resource Usage meter is provided in the Control Panel.
System and Network Security
Customer is prohibited from violating or attempting to violate or circumvent the security of the WINHOST Network. Violations of system or network security will result in civil or criminal liability. WINHOST will investigate any such violations and will cooperate with law enforcement authorities in prosecuting any Customer who is involved in such violations.
Customer Content
Customer Content will include content uploaded to, submitted to, stored on or distributed by Customer via WINHOST Services. Customer Content also includes content of users of Customer's website and materials as well as content provided by third parties. Customer will be solely responsible for the development, operation, and maintenance of Customer Content.
Remedy Action
WINHOST may take remedy action with or without notice, which may result in the following: a) removal of all or a portion of the Customer Content, b) disconnection or discontinuance of any and all Services, or c) termination of this Agreement in the event of i) violation of our AUP, ii) notice of violation by Customer of this TOS, iii) non-payment, or iv) chargeback. Customer agrees that WINHOST will have no liability to Customer due to any Remedy Action that we may take. Customer also agrees that WINHOST will not provide any refunds of any fees paid by Customer prior to Remedy Action. In the event of Remedy Action against Spamming Activities or Internet Abuse, WINHOST will charge the customer a $500.00 clean up fee.
Termination for Violation
We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we decide to exercise these rights, nor will you receive a refund of any Fees.
Use of the Services
Your use of the Services must be reasonable and you may not place excessive burdens on our servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you excess fees, to the extent that they exceed the use of the Service of similarly situated customers. You understand that disk space, bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Reaching these capacity numbers on a regular basis may result our need to place restrictions on your use of the Service.
When an Account is terminated or cancelled, all files and data will be destroyed and unrecoverable for security and privacy reasons. WINHOST has no responsibility to forward e-mail, or other communications, for you once your Account is closed and you will no longer have access to the control panel. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
Customer Representations and Warranties
Customer represents and warrants to WINHOST that during the Term that Customer owns, has a valid license, or has the right to use the Customer Content, including all text, graphics, and code, and the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not, (i) infringe any copyright, trademark, or any other proprietary right of a third party, (ii) violate any criminal laws and will only be used for lawful purposes, (iii) constitute false advertising, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation, or (iv) contain and will at all times remain free of computer viruses, trojan horses, worms, and other malicious code.
You represent and warrant to WINHOST that: (i) you have the knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent from accessing the Internet; (iii) you will use the Service without extra effort on our part; and (iv) that you will pass through the terms of our Acceptable Use Policy to End Users.
License to WINHOST
Customer grants WINHOST a royalty-free, non-exclusive, worldwide right and license to reproduce, copy, use and distribute Customer Content and to make archival or backup copies of the Customer Content solely to provide and operate the Services. WINHOST acknowledges that they are not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with the Customer.
WINHOST Intellectual Property
WINHOST grants to Customer a non-exclusive, non-transferable, royalty-free license, during the term of this Agreement, to use WINHOST Technology solely for the purpose of accessing and using the Services. Customer may not use the WINHOST Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from WINHOST to Customer any WINHOST Technology, and all rights, titles and interests in and to the WINHOST Technology shall remain solely with WINHOST. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the WINHOST Technology. WINHOST's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of WINHOST. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of WINHOST.
Independent Contractor
WINHOST and Customer are independent contractors. Nothing contained in the TOS places WINHOST and Customer in the relationship of principal, agent, partner or joint ventures. Neither party may represent itself as having any authority to make contracts or enter into any agreements in the name of the other party.
Feedback
Any feedback, data, answers, questions, comments, suggestions, idea or the like which Customer sends to WINHOST relating to the Services will be treated as being non-confidential and non-proprietary. WINHOST may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
Hardware and Software
You are responsible for and must provide all Internet connectivity services, computers, software, hardware, and other services necessary to access WINHOST servers and Services. WINHOST makes no representations, warranties, or assurances that customer's equipment will be compatible with WINHOST Services.
Governing Law and Jurisdiction
This Agreement shall be governed in all respects by California law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in California. The terms of this section shall survive any termination of this Agreement.
Government Regulations
Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated items or information to anyone outside the United States in connection with this TOS without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Mutual Indemnification
Each party agrees to indemnify and hold harmless the other party, the other party's affiliates, and each of their respective officers, directors, agents, attorneys, and employees from and against any and all claims, demands, obligations, liabilities, damages, losses, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party's actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.
Disclaimer of Warranty
Customer agrees to use all Services and any information obtained through or from WINHOST, at Customer's own risk. Customer acknowledges and agrees that WINHOST exercises no control over, and accepts no responsibility for, the content of the information passing through WINHOST's host computers, network, or the Internet. THE SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF WINHOST, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, DIRECTORS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE ("WINHOST PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT WINHOST PROVIDES. NO WINHOST PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. WINHOST IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S USERS VIA THE SERVICES PROVIDED BY WINHOST. NO ADVICE OR WRITTEN INFORMATION GIVEN BY ANY WINHOST PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Limitation of Liability
Customer agrees that no WINHOST Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to WINHOST at the time) which may exist in the Services or WINHOST's equipment used to provide the Services.
Under no circumstances, including negligence, shall any WINHOST Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its users, or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if WINHOST has been advised of the possibility of such damages.
No WINHOST Person shall be liable to Customer, any of its users, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to WINHOST's records, programs, equipment, or services.
IN NO EVENT WILL WINHOST'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE ACTUAL SERVICE FEES PAID TO WINHOST BY CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
WINHOST CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. WINHOST WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
Customer understands, acknowledges and agrees that if WINHOST takes any remedy action under this Agreement because of an action of Customer or its website users, Customer agrees that WINHOST shall have no liability to Customer due to such remedy action by WINHOST.
The terms of this section shall survive any termination of this Agreement.
Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, acts of government or other legal order, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
Reciprocal
We each warrant to the other that: (i) we have the power, authority and legal right to enter into this TOS; and (ii) we have the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.
Assignment
This TOS may be assigned by WINHOST. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
No Waiver
No waiver of rights under this TOS, or any other WINHOST policy shall constitute a subsequent waiver of this or any other right under this TOS.
Entire Agreement and Severability
This Agreement represents the entire agreement between the parties, and supersedes all previous agreements. All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect. Customer hereby represents that they are either, an individual entering this Agreement for their personal use and is of legal age to execute this Agreement, or a corporation, limited partnership or other legal entity, validly existing under the laws of the state of its organization and the person acting on behalf of Customer is authorized to execute this Agreement on behalf of Customer.
Last Update: July 27, 2009
