Terms of Service (TOS) Legal Agreement

.:: Please Read All Following Terms Carefully -- TERMS OF SERVICE (TOS) ::.(Last Update : September 2007)

By submitting the online order form, or by using HostOptima Solutions' service, Customer hereby agrees to HostOptima Solutions' Terms of Service (TOS), Acceptable Use Policy (AUP), No Spam Policy (NSP), and Privacy Policy.

Unless otherwise specified, in this TOS, the AUP, the NSP, and the Privacy Policy, the usage of “us”, “we”, “our”, and “ours” shall refer to HostOptima Solutions, a company based in Canada, and all its parents, subsidiaries, successors, and assigns. The usage of “you”, “your”, “they”, and “them” shall refer to the Customer of HostOptima Solutions.

Moreover, in this TOS, the AUP, the NSP, and the Privacy Policy, “HostOptima Solutions” shall refer to HostOptima Solutions, a registered business name under CIAN Technologies Inc., a Canadian corporation, and all its parents, subsidiaries, successors, and assigns; unless otherwise specified, “HostOptima” and “HostOptima Solutions” shall have the same meaning and shall be interchangeable.

Customer agrees that it shall comply with this TOS, HostOptima Solutions’s Acceptable Use Policy (AUP), and HostOptima Solutions’s No-Spam Policy (NSP). Customer further agrees that it has read HostOptima Solutions’s Privacy Policy and agrees to all the terms and conditions in the Privacy Policy. In this document, the word “Agreement,” with a capital “A,” refers to the TOS, the AUP, the NSP, and the Privacy Policy collectively.

SECTION A1: The following type of sites are completely prohibited from ALL our services (shared, reseller, VPS, dedicated servers, etc), unless otherwise noted. Any account found infringing on one of more of the following will face consequences mentioned in the rest of the Terms of Service agreement. This list is only partial and NOT comprehensive; other types of sites may be in violation of our terms of service as well.

-Child or Adult Porn:       Hosting, Distributing, Emailing, or Linking to Child or Adult Pornography of any form
-Copyright:       Hosting, Distributing, or Linking to Copyright Infringed Materials (see http://www.copyright.gov/title17/92chap5.html for more information)
-Cracking:       Brute Force Access of Secured Network Devices
-DoS:       Denial of Service Attack of Network Devices
-Forgery:       Faking an IP Address, Hostname, E-Mail Address, or Header
-Fraud Site:       Hosting or Linking to a Website Intended to Deceive the Public
-Hacking:       Circumventing Security Systems of Network Devices
-HYIP Site:       Hosting or Linking to a Website of High Yield Investment Program, Ponzi Scheme, or Pyramid Scheme
-ID Theft:       Hosting, Distributing, or Linking to Stolen Account Identification Information
-Infection:       Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms
-IRC Malicious:      Malicious Use of Internet Relay Chat
-IRC Unregistered:      Internet Relay Chat Server
-Myspace "Train" Site*:       Reported to use high amount of persistant resources, TCP/IP ports *VPS/Dedicated servers are exempted with permission
-Newsletter/Bulk Email Sites*:       Sending a large amount of newsletters, email, sites designed to send bulk email or other uncommon mail usage. *VPS/Dedicated servers are exempted with permission
-Sites using persistant connections:       Any type of persistant resource usage affecting the useability, stability and/or security of the server
-Pharmaceuticals:       Hosting, Distributing, or Linking to Pharmaceutical/Drug Sites.
-Proxy Site*:       Running a web proxy service using CGI or PHP or other language *VPS/Dedicated servers are exempted with permission
-Phishing:       Identity Theft by Email Under False Pretense
-ROKSO Spamhaus:      ROKSO/SBL Blacklisting of an IP at www.spamhaus.org for Malicious Activity
-Scanning:       Probing for Vulnerabilities of Network Devices
-Shells:       Hosting Accounts Primarily for Shell Access
-Spam Cannon: Sending High Volume Spam (UCE or UBE)
-Spam Email:       Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE)
-Spam List:       Hosting, Distributing, or Linking to Email Address Lists for Spam
-Spam Proxy:       Hosting an Open Proxy Server Used for Spam
-Spam Relay:       Hosting an Open Mail Rely Used for Spam
-Spam Hijack:       Distributing Spam Through a Third Party Server Vulnerability
-Spam Site:       A Site Advertised by Spam Email or Spam Web
-Spam Ware:       Hosting, Distributing, or Linking to Software Designed for Spamming
-Spam Web:       Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, or Guestbooks
-Terrorist Site: Hosting or Linking to a Site Advocating Terrorism
-"Tools":       Hosting, Distributing, or Linking to Cracking, DoS, Forgery, Infection, or Scanning Software or Instruction
-Trademark:       Hosting, Distributing, or Linking to Trade Mark Infringed Materials
-Upstream AUP:       Violation of TOS or AUP of any Upstream Providers of HostOptima Solutions.
-Warez/Illegal Software:       Hosting, Distributing, or Linking to Cracks, Hacks, KeyGens, Serials, Torrents, or Pirated Software/Scripts

 1. General Terms.      
In consideration of hosting services to be delivered, Customer agrees to be bound by the following terms and conditions:        

1.1. Customer agrees to pay, in advance of each monthly service term, for hosting services to be rendered.    
1.2. Customer agrees to be bound by the service term selected on the online order form or via applicable promotional codes that may require Customer to order HostOptima Solutions’s service for a certain minimum period of time.        
1.3. Customer agrees to a no-refund policy in advance. Setup fees and monthly web hosting service fees are non-refundable.        
1.4. Non-Payment of services shall result in a 5-day notice of disconnection. All payment failures must be cured within 5 business days from invoice due date or account will be suspended. Account termination will result from invoices overdue for 30 days.        
1.5. HostOptima Solutions is not and shall not responsible for data integrity for any accounts that are terminated, disconnected, or interrupted because of Customer’s failure to pay for HostOptima Solutions’s services.        
1.6. Customers agree to pay all taxes applicable to your account.    

  2. Agreement for Services.        

2.1. HostOptima Solutions will provide, and Customer will purchase and pay for, the Web hosting services (the “Services”), according to the service fees specified in the Order for the applicable Service Description. Customer acknowledges that the service, and service fees have been communicated to the Customer, and that Customer is aware of all applicable charges as per the Agreement. Customer also understands that no promotional offers will apply to their individual service unless said promotional offers are specified in this Agreement.      

 3. Payment.   

3.1. Establishment and provision of service is contingent upon receipt of payment from Customer to HostOptima Solutions.          
3.1.1. Customer must pay in full for the Services before HostOptima Solutions begins to provide the Services to Customer. Invoices are generated ten (10) days before renewal date, and must be paid three (3) days after the invoice is generated. This billing policy ensures that the Customer's services are not terminated due to late payment, and therefore allow a time frame for overdue invoices. Invoices not paid during this period are subject to overdue fees of US$0.25/day, unless an explicit extension for the outstanding invoice(s) are communicated to our billing department. If invoices are not paid within the specified due dates, the package will be suspended and may have its service terminated on the day following the anniversary renewal date (NOT the invoice due date, thus the Customer receives full service for the period paid for). The customer agrees that if paying by PayPal Subscriptions, recurring billing will be billed and charged automatically on the date the invoice is generated. PayPal Subscription recurring billing is exempt from the early invoice policy described above.           
3.1.2. Setup fees will be charged and are due at the time of the Customer’s initial request of the Services requiring setup.        
3.2. Payment is due on the defined monthly recurring billing date of each month. Service will be interrupted on accounts that reach 5 days past due. Accounts that are not collectable by HostOptima Solutions will be turned over to an outside agency for collection. If your account is turned over for collection, you agree to pay to HostOptima Solutions a “Processing and Collection” Fee of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars.      

 4. Delinquent Accounts.    

HostOptima Solutions may temporarily deny service or terminate this Agreement upon failure of Customer to pay charges when due. Such termination or denial will not relieve Customer of responsibility for the payment of all accrued service fees, and any collection fees to which HostOptima Solutions may be entitled under this Agreement or under applicable law.    

 5. Account Cancellation.

Customers may voluntarily cancel their account at any time, for any reason or for no reason, by emaling sales@hostoptima.com with subject “Cancellation Request” with the username, password, domain and full name of the account holder.
Once a Customer has cancelled their account at least 2 days before the renewal date, no more charges will be billed to the account. Cancellations on or after renewal will be charged renewal fees.
PayPal paying customers cancelling their paypal subscription payment does not warrant cancellation of service. All cancellations must go through the cancellation email request.
Customer can terminate their account for any reason or for no reason. However, Customer understands and agrees that HostOptima Solutions does not provide pro-rated or any other kinds of refunds on cancellations. All fees Customer has paid shall be nonrefundable.

6. Refunds and Disputes.

IMPORTANT NOTICE: EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 6, ALL PAYMENTS TO HostOptima Solutions ARE NONREFUNDABLE.

All payments to HostOptima Solutions are nonrefundable. This includes any setup fees and monthly fees regardless of usage. All billing disputes must be reported within fifteen (15) days of the time the dispute occurred. Disputed charges to your credit card issuer, also known as chargebacks, which, in HostOptima Solutions' sole discretion, are invalid under the terms and conditions of this Agreement, will result in service interruption, and reconnection fees to restore the desired service.

Without waiving any of its other rights under this Agreement, HostOptima Solutions, Inc. offers to its Customers a conditional ten (10)-day money-back guarantee on fees for hosting services only (the “10-Day Guarantee”). If for any reason you cancel your account by filling in the account cancellation form and submitting it to HostOptima Solutions, within ten (10) days of the beginning of your service, HostOptima Solutions will refund your money with no questions asked; provided, however, that you have never previously obtained a refund under the 10-Day Guarantee. If you have ever previously obtained a refund under the 10-Day Guarantee, your account will be canceled, but no money will be refunded to you.

Please note that the amount refunded to you will be the amount you paid for hosting services only, and will not include any of the following fees:

  • Setup fees,
  • Fees for domain name registrations,
  • Fees charged for exceeding your allotted disk storage space or bandwidth,
  • SSL certificate fees,
  • Web design fees,
  • Web site marketing fees,
  • Any add-on services, features, software, and
  • Any other fees for services involving a third party.

The 10-Day Guarantee is subject to all of the following limitations:

    • You are entitled to a maximum of one (1) 10-Day Guarantee.
    • If you do not cancel your account within ten (10) days of the beginning of your service, your right to the 10-Day Guarantee shall expire forever and may not be revived under any circumstances, without the prior express written approval of HostOptima Solutions.
    • You may not transfer or assign the 10-Day Guarantee to any third party.
    • You agree that you will not circumvent the restrictions on the 10-Day Guarantee described in this document, or attempt to circumvent those restrictions by any means, including, but not limited to, the following actions:
      • Creating multiple accounts, using the same customer name or different customer names;
      • Canceling your account for the sole purpose of obtaining a refund and then registering for a new account;
      • Organizing multiple business entities or using assumed business names for the purpose of circumventing these restrictions;
      • Knowingly providing false or misleading information when you register for your account; or
      • Requesting a refund under the 10-Day Guarantee at any time after you have already received a refund under that guarantee.
    • If you violate any provision of any of the following policies of HostOptima Solutions, you will not be eligible for the 10-Day Guarantee:
      • Terms of Service (TOS);
      • Acceptable Use Policy (AUP); or
      • No-Spam Policy (NSP).

Changes to your service, including, but not limited to, adding new services, removing services, or changing the type of hosting plan you have do NOT make you eligible for an additional 30-Day Guarantee. The 10-Day Guarantee applies to your first order of Web hosting services from HostOptima Solutions and does not apply to any changes to your service at any time.      

 7. Customer agrees not to engage in any activity that violates any international, foreign, federal, state, or local laws applicable to the service terms described in this Agreement.      

 8. HostOptima Solutions reserves the right to discontinue service to any Customer it deems, in its sole discretion, violates any condition of service including, but not limited to, the following:        

8.1. the Acceptable Use Policy, or      
8.2. the No-Spam Policy.  

 9. Customer agrees to defend, indemnify, and hold harmless HostOptima Solutions, and the parents, subsidiaries, successors, assigns, employees and agents of HostOptima Solutions against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an indemnified party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Services, and to reimburse an indemnified party for all legal and other expenses, including reasonable attorneys’ fees incurred by such indemnified party in connection with investigating, defending, or settling any Loss whether or not in connection with pending or threatened litigation in which such indemnified party is a party.    

  10. HostOptima Solutions SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR        

10.1. ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, OR LOSS OF DATA RESULTING FROM THE USE OF HostOptima Solutions ’S SERVICES BY CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY. NOTE THAT ANY ACTION(S) CAUSED BY CUSTOMER(S) OR INDIVIDUAL(S) THAT AFFECT ANY OF THE ABOVE TERMS AND REGULATIONS ARE SUBJECT TO ADMINISTRATIVE AND/OR DAMAGE AND/OR OTHER FEES THAT WILL BE CHARGED TO THE CUSTOMER(S) OR INDIVIDUAL(S) INVOLVED. THE AMOUNT IN QUESTION REMAINS AT HostOptima Solutions' BEST JUDGMENT AND DISCRETION, BASED ON THE CRITERIA OUTLINED ABOVE.        

10.2. ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS.      

 11. HostOptima Solutions PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. HOSTOPTIMA SOLUTIONS DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE SERVICES AND HostOptima Solutions SHALL HAVE NO LIABILITY THEREFOR.      

 12. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOSTOPTIMA SOLUTIONS DISCLAIMS, ALL WARRANTIES, REPRESENTATIONS OR OTHER ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR THROUGH, THIS SERVICE, THE SYSTEMS WHICH PROVIDE IT, AND THE INTERNET, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS.      

  13. HOSTOPTIMA SOLUTIONS DOES NOT ASSUME ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY INFORMATION DISCLOSED OR MATERIALS ACCESSED THROUGH ITS SERVICES, ITS SYSTEMS, ITS NETWORKS, OR THE INTERNET.      

14. No Waiver of Rights by HostOptima Solutions.        
Any failure by HostOptima Solutions to enforce this Agreement in every instance in which it might apply does not amount to a waiver of any of HostOptima Solutions’s rights.      

  15. Notices.      

15.1. From HostOptima Solutions to Customer.
       
HostOptima Solutions will notify you by e-mail of any notices that HostOptima Solutions is required to provide to you under this Agreement, at the most current e-mail address you have provided to HostOptima Solutions. By entering this Agreement, you consent to receive notices by e-mail. You are solely responsible for ensuring that HostOptima Solutions has your most current e-mail address, and HostOptima Solutions shall not be responsible for any lost, misdirected, bounced, forwarded, or undeliverable e-mail that HostOptima Solutions sends to the most current e-mail address you have provided to HostOptima Solutions

   16. Currency.      
  All monetary amounts to which this Agreement refers shall be in United States Dollars (USD), unless otherwise specified differently.      

 17. Entire Agreement.        
This Agreement, including all of its component parts, comprises the entire agreement between you (the Customer) and HostOptima Solutions, and supersedes any prior or previous agreements between you and HostOptima Solutions with respect to the subject matter of this Agreement; provided, however, that you agree that you shall be subject to any additional terms and conditions of which HostOptima Solutions notifies you from time to time, pursuant to this Agreement.      

 18. No Oral Modification of this Agreement.      
This Agreement may not be modified orally.    

 19. Assignment.      

  19.1 Customer shall not assign or attempt to assign its obligations under this Agreement without HostOptima Solutions’s prior and express written consent to such assignment.      
  19.2. HostOptima Solutions may assign any or all of its rights and obligations under this Agreement at any time without prior notice to or consent of Customer.      

 20. Consent to Jurisdiction; Venue.      
  Jurisdiction and venue for arbitration or litigation of any dispute, controversy, or claim arising out of, in connection with, or in relation to this Agreement, or the breach thereof shall be proper only in a venue determined HostOptima Solutions.      

21. Force Majeure.        
HostOptima Solutions shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, terrorism, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications or wireless service or connection to any telecommunications or wireless service, or any cause beyond the reasonable control of HostOptima Solutions.      

22. Severability of Terms of this Agreement.      
  In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties hereto, and the remainder of the provisions shall remain in full force and effect.      

23. Limitation of Actions Arising Under this Agreement.      
  Any cause of action you may have with respect to HostOptima Solutions’s performance or alleged non-performance of this Agreement must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred.  

24. Denial of Service      
HostOptima Solutions reserves the right to refuse or discontinue service to anyone at our sole discretion.

25. Respect of Company, Organization, Staff, Employees and Other Customers    
Refer to SECTION 18 of the Acceptable Use Policy ("AUP") located at http://www.hostoptima.com/company/aup.php

-- THIS MARKS THE END OF THE TERMS OF SERVICE (TOS) AGREEMENT --

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