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Terms of Use (last modified June 1 2005)
All users of PowerMedium's services, and all customers upon signing up for PowerMedium's
services, agree to comply with PowerMedium's Terms of Use ("TOU"). The spirit
of the TOU is to ensure customers are using PowerMedium's services with due regard
to the rights of other Internet users and in conformity with the requirements
of PowerMedium's network environment. The TOU are not exhaustive and PowerMedium
reserves the right to add, delete, or modify any provision of its TOU at any
time without notice, effective upon either the posting of the modified TOU to
www.PowerMedium.com or notification of the modified TOU. Any complaints about
a customer's violation of the TOU should be sent to abuse@PowerMedium.com. The
TOU supersedes any other agreement with PowerMedium, whether written, oral, by
conduct, or otherwise.
The legal owner of customers' web sites and accounts with PowerMedium will be the individual or organization whose name is listed in PowerMedium's database as the owner. Customers will fully cooperate with and abide by any and all of PowerMedium's security measures and procedures in the event of any dispute over ownership of customers' web sites and accounts with PowerMedium. Illegal Use PowerMedium servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing PowerMedium services, all PowerMedium customers certify that they and/or the organization they represent in procuring services from PowerMedium are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto. Spamming Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to PowerMedium's customers. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a web site hosted on a PowerMedium server, and selling or distributing software (on a web site residing on a PowerMedium server) that facilitates spamming. Violators will be assessed a minimum fine of US$200 and will face immediate suspension. PowerMedium reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision. System and Network Abuse Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting. Viruses and Other Destructive Activities Use of PowerMedium's services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use PowerMedium's services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet. Copyright Violations The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. All PowerMedium customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a PowerMedium customer (per the DMCA) to PowerMedium must follow the below procedures. Copyright infringement notifications submitted to PowerMedium according to these procedures will be processed within 21 days of receipt. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at PowerMedium's sole discretion. DMCA Copyright Infringement Notification Requirements:
The use of PowerMedium's services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. PowerMedium is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services. Privacy PowerMedium is concerned with the privacy of on-line communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, PowerMedium urges its customers to assume that all of their on-line communications are insecure. PowerMedium cannot take any responsibility for the security of information transmitted over PowerMedium's facilities. Additional details on privacy and PowerMedium's use of customer information can be found in PowerMedium's Privacy Statement located at http://www.PowerMedium.com/support/privacypolicy.htm. Customer Responsibility Customers are required to use the PowerMedium network responsibly. This includes respecting the other customers of PowerMedium. PowerMedium reserves the right to suspend and/or cancel service with any customer who uses the PowerMedium network in such a way that adversely affects other PowerMedium customers. While PowerMedium may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, PowerMedium does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when PowerMedium becomes aware of any violation of the TOU or other user agreements, PowerMedium may take any action to stop or correct such violation, including, but not limited to, denying access to PowerMedium's services and equipment or to the Internet. In addition, PowerMedium may take action against a customer or a customer of such customer because of the activities of such customer. PowerMedium anticipates that customers who offer Internet services will cooperate with PowerMedium in any corrective or preventive action that PowerMedium deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of PowerMedium policy and PowerMedium reserves the right to take any such action even though such action may affect other customers of the PowerMedium customer. Actions Taken by PowerMedium The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. PowerMedium will be the sole arbiter as to what constitutes a violation of the TOU. PowerMedium reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When PowerMedium becomes aware of an alleged violation of its TOU, PowerMedium will initiate an investigation. During the investigation, PowerMedium may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, PowerMedium may, at its sole discretion, restrict, suspend, or terminate a customer's web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, PowerMedium will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. PowerMedium does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by PowerMedium. Indemnification PowerMedium customers agree to protect, defend, hold harmless, and indemnify PowerMedium, any third party entity related to PowerMedium (including, without limitation, third party vendors), and PowerMedium's executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries with the same parent company as PowerMedium, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal fees and expenses, arising out of or resulting in any from the customer's use of PowerMedium's services. Disclaimer The PowerMedium service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. PowerMedium expressly disclaims any representation or warranty that the PowerMedium service will be error-free, secure or uninterrupted. No oral advice or written information given by PowerMedium, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. PowerMedium and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service. Termination for Bankruptcy or Insolvency If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, PowerMedium may immediately terminate provision of PowerMedium's services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against PowerMedium in such event. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL PowerMedium (INCLUDING, WITHOUT LIMITATION, PowerMedium'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, CO-SUBSIDIARIES WITH THE SAME PARENT COMPANY AS PowerMedium, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING PowerMedium'S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUES DECREASE, EXPENSE SINCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR PowerMedium SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY PowerMedium SERVICES EVEN IF PowerMedium HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PowerMedium'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR PowerMedium'S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY PowerMedium OR PowerMedium'S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE. Modifications PowerMedium may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with PowerMedium's services. Certain changes to PowerMedium's services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and PowerMedium is not liable, for any and all such personalized applications and content, except as expressly agreed to by PowerMedium. Backup of Data Except where PowerMedium has expressly agreed in writing to the contrary, customers are solely and entirely responsible, and PowerMedium is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that customers use in connection with PowerMedium services. Maintenance Windows PowerMedium may conduct weekly maintenance windows during which time any or all of PowerMedium's services may be unavailable. PowerMedium also reserves the right to conduct emergency maintenance windows at any time and without warning, during which time any or all of PowerMedium's services may be unavailable. Systems and Networks Information PowerMedium makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, or validity of the data and/or information available. Use of information obtained from or through PowerMedium is at the sole risk of Customer. The data or information available through the interconnecting networks may not be accurate, and PowerMedium has no ability or authority over the data or information. PowerMedium makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, or validity of the data or information residing on or passing through the internconnecting networks. Use of data or information obtained from or through PowerMedium's services is at the sole risk of each customer. Third Party Licenses PowerMedium makes a reasonable effort to provide customers with technologies, developments, and innovations (collectively "Technologies"), part of which may be licensed, or co-branded, from or by, third party entities. However, PowerMedium makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, PowerMedium specifically disclaims all warranties of merchantability and and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold PowerMedium liable in any way for the revocation of any license, which has been licensed to PowerMedium. The use of the Technologies obtained from or through PowerMedium, or any other referred third party, whether directly or indirectly, is at the sole risk of customers. Non-PowerMedium Products Any mention of non-PowerMedium products by PowerMedium, its employees, or any third party entity related to PowerMedium is for information purposes only and does not constitute an endorsement or recommendation by PowerMedium. PowerMedium disclaims any and all liabilities for any representation or warranty made by the vendors of such non-PowerMedium products or services. PowerMedium's Intellectual Property Customers will not, without PowerMedium's express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on PowerMedium's web site, and customers will not use any of PowerMedium's trademarks, service marks, copyrighted materials, or other intellectual property without PowerMedium's express written consent. Customers will not, in any way, misrepresent their relationship with PowerMedium, attempt to pass themselves off as PowerMedium, or claim that customers are PowerMedium. Assignment Customers may not assign or delegate their rights or obligations under the TOU or other agreement for PowerMedium's services, either in whole or in part, without the prior written consent of PowerMedium. Minimum Age Requirement PowerMedium customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a PowerMedium customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for PowerMedium services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains PowerMedium's express written consent to the contrary. Any acceptance of the TOU or any other agreement for PowerMedium's services will be deemed null and void to the extent that PowerMedium will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of PowerMedium's services. Governing Law and Severability The TOU, and any other agreement for PowerMedium services, will be governed by and construed in accordance with the laws of the State of Illinois, USA without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and PowerMedium will take place in Illinois, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other PowerMedium agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect. Force Majeure PowerMedium will not be liable for delays in its performance of the TOU or PowerMedium services caused by circumstances beyond PowerMedium's reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). PowerMedium will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.Waiver and Amendment : Any waiver, modification, or amendment of any provision of the TOU or other agreement for PowerMedium services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of PowerMedium. Independent Contractors Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between PowerMedium and its customers. Each of PowerMedium and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein. Construction and Interpretation Wherever in this TOU the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the TOU into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the TOU. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the TOU. Complete Agreement and Exclusivity The TOU, and/or any other specific agreement for PowerMedium services, constitutes the complete understanding and agreement between PowerMedium and its customers. Except when expressly agreed to the contrary in signed writing by an authorized representative of PowerMedium, the TOU supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This TOU, and/or any other specific agreement for PowerMedium services is between PowerMedium and its customers only and will not confer any rights in any third party except as otherwise expressly provided by PowerMedium. D. All PowerMedium Customer Billing Policy The following Terms of Use constitute PowerMedium's Billing Policy and apply to ALL PowerMedium customers: Payments All charges are shown in US Dollars. Payments are to be made in US dollars. PowerMedium accepts the following types of payment: - Check/money order - Credit card (VISA, MasterCard, American Express, Discover) - Bank wire transfer - PayPal All payments are due on the Account Statement Date. The Account Statement Date is the monthly anniversary of the date the account was activated. If you provide PowerMedium your credit card information, you authorize PowerMedium to automatically charge your credit or debit card for charges that apply to your account. Recurring charges will be posted to your credit card until such time that you cancel your account in accordance with PowerMedium's Billing Policy in the TOU. Charges subsequent to your initial order will accumulate in your account until such charges exceed $9.95. PowerMedium will then automatically charge your credit card on the next Account Statement Date. You are responsible for directly updating, or notifying PowerMedium, of any changes to your credit card (including, but not limited to card number, expiration date, billing address, or card status). Customers not paying by credit card agree to make payment of their balance due within ten (10) days of the Account Statement Date. Accounts that are thirty (30) days past due will be automatically suspended. All past due and unpaid balances are subject to collection. In the event of collection, you will be liable for costs of collection including attorney's fees, court costs, and collection agency fees. Billing Cycles (Terms) PowerMedium offers three Billing Cycles (terms) for hosting charges: Monthly, Quarterly (3 months) and Yearly (12 months). The Billing Cycle begins on the Plan Activation Date. Resellers are limited to the monthly Billing Cycle for all of their charges. You may elect to change your Billing Cycle at any time; however, the new Billing Cycle will only take effect at the time of the next plan renewal. All additional features added to an account are charged monthly. Additional items are non-refundable. Account Renewals In order to insure uninterrupted service to your website, all plans will automatically renew at the end of the plan's Billing Cycle. Plan renewal charges are based on the prevailing rate on the date of renewal according to the service selected. Plans are renewed for the same billing cycle. If you wish to cancel your plan before plan renewal, please refer to the Cancellation section below. Statements PowerMedium does not mail paper invoices or statements. Statements can be viewed and printed through SiteControl. Customers may elect to receive their monthly account billing statement via email. This option may be selected in SiteControl. Fees Returned (NSF) Checks PowerMedium charges a $25.00 fee for returned (NSF) checks. Customers that issue an NSF check will be required to submit future payments with a certified check or money order. Credit Card Chargebacks A $25.00 chargeback fee will be assessed for each credit card chargeback received by PowerMedium. Bank Wire Payments PowerMedium does NOT charge fees for accepting payment via bank wire, however, international wire transfers may be assessed a $20.00 USD processing fee by an intermediary bank in New York. In addition, your issuing bank may also charge a fee for sending the wire. Please add these fees to the amount that you are sending to PowerMedium or the amount credited to your account will be less than your intended payment. Reactivation Customers that wish to reactivate a closed account will be assessed a $19.95 reactivation fee. A $99.95 fee will be assessed if PowerMedium restores your data files to your reactivated account. Platform Change Customers that elect to change plans to a different operating system platform will be charged a $19.95 platform change fee. Account Splits and Mergers PowerMedium encourages customers to merge hosting plans contained in two or more accounts into one account. There is no fee for this service. Customers may also request that PowerMedium separate one or more plans contained under one account into separate accounts. The fee for this service is $19.95 for each new account created and is charged to the new account. Please direct all requests for these services to: billing@PowerMedium.com Cancellations Hosting plans will automatically renew until a plan is cancelled. In order to cancel service, you must contact PowerMedium's Billing Team, Monday through Friday, 9:00 A.M. to 5:00 P.M. Eastern Time, at (813) 221-4429. PowerMedium's billing representatives will assist you with the cancellation process. Please be aware that there are no pro-rated refunds after the first 30 days of service. Non-US customers may contact PowerMedium's Billing Team via email at billing@PowerMedium.com. Cancellation requests must be received by PowerMedium a minimum of ten (10) days prior to the end of your Billing Cycle. Cancellations submitted later than this time may result in automatic renewal of your hosting plan. Cancellations become effective on the day processed by PowerMedium. PowerMedium is unable to cancel your account effective for a future date. PowerMedium will confirm the cancellation request when it is processed. If you do not receive a confirmation, please contact PowerMedium as soon as possible. PowerMedium does not monitor, and will not automatically cancel, plans for problems related to domain name transfers, non-usage, Internic, your ISP, or any other secondary issues not directly related to PowerMedium's services. Cancellation of services does not relieve the customer from paying any outstanding balance owed on the account. PowerMedium Corporation reserves the right to cancel any account, at any time, without notice, for any reason PowerMedium Corporation considers appropriate. 30 Day Money Back Guarantee Each of PowerMedium's shared hosting plans carries a 30-day unconditional money back guarantee. If you are not completely satisfied with our services or support within the first 30 days, you will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30 Day Money Back Guarantee: additional items and services; domain name registration; dedicated servers; items and services ordered through the reseller program; domain parking plus; and overage fees. Refund Policy Refunds are only available in accordance with the 30 Day Money Back Guarantee. Refunds will be provided in the same payment method of the original payment. There are no refunds offered or promised after 30 days. Credit Card Disputes/Chargebacks PowerMedium has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment is subject to a fine, suspension and account termination at PowerMedium's discretion. A charge of $25.00 per chargeback will be assessed to all accounts that receive a chargeback. Billing/Price Changes PowerMedium's policies and prices are subject to change without notice. Any price changes become effective in the next billing cycle. |
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