Hosting Agreement

 Hosting Agreement

Welcome to JVillalobos Hosting Services. This Web Hosting Agreement (the “Agreement”) governs your purchase and use, in any manner, of all Hosting Services, including FileMaker Hosting Services and Web Hosting Services, (collectively, the “Services”) as described on our website (http://www.jvillalobos.com) and in our first invoice to you, ordered by you and accepted by JVillalobos and describes the terms and conditions that apply to such purchase and use of the Services. JVillalobos general policy is to act as an Internet Presence Provider.

1. Agreement
BY HOSTING YOUR ACCOUNT WITH JVILLALOBOS AND BY ORDERING ANY OF OUR RELATED SERVICES YOU ARE EXPLICITLY, EXPRESSLY, AND UNEQUIVOCALLY AGREEING TO THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT TAKES A CONTRACTUAL EFFECT IMMEDIATELY FROM THE MOMENT YOU PUSH THE “COMPLETE SUBSCRIPTION” BUTTON.

2. Charges
All payment is in U.S. currency. All accounts are set up on a pre-pay basis. To start an account, JVillalobos requires at least the first months, plus any set-up fees if applicable before we initiate the Services. After that you may select to pay per month, per quarter or per year (annual). All pricing and account configurations are guaranteed only for the term of pre-payment. In other words, if you pre-paid your account for 3 months, and prices go up or account configurations change, your account may be subject to the new terms when you renew it at the end of your pre-pay term. JVillalobos reserves the right to change prices and configurations at any time, unless other terms have been agreed upon on an individual basis. If you choose not to pay by credit card, JVillalobos charges a $2 per invoice handling charge to email invoices. If you need a paper invoice mailed to you via the USPS a $4 handling charge will be added to each invoice. You agree to pay for all charges attributable to your use of the Services at the then current JVillalobos prices, which shall be exclusive of any applicable taxes. You shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on JVillalobos’s net income.

3. Late Payments
JVillalobos emails or mails its invoices on or about the 15th of each month, with payment due by the 1st of the month. If payment is not received within thirty (30) days of the due date, JVillalobos may suspend any and all Services. At the time an account is suspended, JVillalobos will bill for Services and will charge a late fee of 1.5% of the balance per month or $2.50, whichever is greater. If payment has not been received within sixty (60) days from the due date, JVillalobos will delete all files from its servers and will send all account information to a collection agency for collection. JVillalobos will bill each client $25 per returned check, per wire transfer received and per credit card chargeback received. All JVillalobos accounts are setup and billed on anniversary billing cycles. Your particular billing cycle corresponds to the prepayment length you chose at setup. Your account will automatically renew at this length unless you notify us of your desire to terminate the services. There is no fee to change to a shorter billing cycle at the end of the current cycle. Please contact the billing department sales@jvillalobos.com should you wish to change your anniversary billing cycle. In addition, your failure to fully pay any fees and taxes within thirty (30) days after the applicable due date will be deemed a material breach of this Agreement, justifying JVillalobos’s suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstated of Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees.

4. Liability and Obligations on Termination
Should the Agreement expire or be terminated for any reason, JVillalobos will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to JVillalobos as provided in this Agreement.

5. 30-Day Guarantee
Notwithstanding Section 7, if you are not fully satisfied with the Web Hosting Services, you may terminate this Agreement at any time during the first thirty (30) days from your initial order date and receive a full refund of all payments made by you to JVillalobos for the Web Hosting Services. To receive such refund, you must terminate this Agreement in the manner described in Section 5 and cease using the Services, and JVillalobos must receive your termination notice, within the above described thirty (30) day period. You agree to provide JVillalobos with a description of why you are not satisfied with the Services and are terminating this Agreement.

6. Termination, Cancellation and Refund Policy
JVillalobos may terminate this Agreement at any time and for any reason by providing to you thirty (30) days prior written notice of termination, unless any of the conditions in Section 6 are met (see below). If JVillalobos terminates this Agreement, JVillalobos shall refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided herein. Customer may terminate this Agreement without cause upon ten (10) days notice to JVillalobos You may use any one of the two following methods to cancel your hosting:
Via Email: If you wish to cancel your account, please send an email with your name, address and phone number, your domain name or account name to sales@jvillalobos.com, along with the date you wish to cancel service.

Via US Mail: If you wish to cancel your account, you also may send a cancellation including your name, address and phone number, your domain name or account name, along with the date you which to cancel service, to the following address:
JVillalobos
555 De Haro Street, Suite 110
San Francisco, CA 94107
You may call our offices to notify us of cancellations, but we will still require a written or emailed notice. Refunds will be made by company check (US only) or issued back to your credit card within 30 days of receipt of cancellation. Upon the termination of this Agreement, Customer will return to JVillalobos all copies of any Deliverables provided to it by JVillalobos. Sections 3 will survive termination of this Agreement.

7. Terms and Conditions and Termination
JVillalobos has specific ethical concerns regarding the use of its computers detailed below. JVillalobos has the right to discontinue service, or deny access to anyone who violates our Policies or the Terms and Conditions shown below WITHOUT WARNING OR PRIOR NOTICE. No refunds of fees paid will be made if account termination is due to violation of the terms outlined below:

7.1 Server Abuse: Any attempt to undermine or cause harm to a server, or customer, of JVillalobos is strictly prohibited.

7.2 Unauthorized Use: JVillalobos will strongly react to any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include “Internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning, etc. Any unauthorized use of accounts or computers by a JVillalobos customer, whether or not the attacked account or computer belongs to JVillalobos, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack.

7.3 Unacceptable Use: Customers may not run IRC, bots or clients. Unacceptable uses also include, but are NOT limited to: Bulk emailing, unsolicited emailings (spam), newsgroup spamming, pornographic content, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers, and/or anything else determined by JVillalobos to be unacceptable use of JVillalobos’s services including abuse of server resources.

Accounts may be terminated that include the following content or which have links to the following content:

??? Providing material that is grossly offensive to the Web community including blatant expressions of bigotry, racism, hatred, or profanity.
??? Promoting or providing instructional information about illegal activities, or promoting physical harm or injury against any group or individual.
??? Displaying material containing obscene nudity or pornographic material.
??? Displaying material that exploits children under 18 years of age.

Acts of copyright infringement including offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs, or any type of cracker utilities.

7.4 Abuse of Traffic and Server Space: JVillalobos set traffic limits and server disk space limits on each of its accounts. The limits are posted on our website. Any customer who violates JVillalobos’s policies in abusing either space or site transfer limits will be notified and given 2 days to remedy the problem. If the problem is not resolved within the allotted period, the client will be billed for the overages.

8. General Terms of Service
To maintain the integrity of our service the following limitations apply:

8.1 Unsolicited Email (Spam): Unsolicited commercial advertisements are not allowed in email, and will likely result in account suspension or cancellation. Commercial advertisements are unwelcome in most Usenet discussion groups and on most email mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list’s charter for whether advertising is allowed or not. “Spamming,” or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such. Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. Email is a person-to-person medium, not a broadcast medium. Upon your first Spam offense your mail will be disabled for 72 hours. Upon your second Spam offense your entire domain will be disabled for 72 hours and you will be fined $100.00 per sent Spam. Upon your third offense your account with JVillalobos will be terminated, you will be fined $200.00 per sent Spam. No refunds will be given if your account is terminated for Spam.

8.2 CGI Scripts: Some accounts come with the ability to run CGI scripts. You are free to use any CGI scripts you wish, however we reserve the right to disable any CGI script that effects normal server operation without prior warning.

8.3 Chat Rooms: We do not allow clients to install their own chat rooms, without approving them with the JVillalobos Support Team. Most chat rooms tend to be large system hogs and we cannot allow it as an account option. Note: Parachat chat rooms or other client-side chat rooms do not apply to this rule. You may install them.

8.4 SMTP Mail Services: SMTP service for outgoing mail is provided on our networks on a limited basis. Use of our SMTP services is restricted and can be used only if the following conditions are met:

You are an JVillalobos customer in good standing.
You are sending mail “from” addresses affiliated with your accounts and services obtained from JVillalobos
You are not acting in violation of our policies (ie, not sending out Spam).
Your dialup ISP’s mail server is unsuitable for technical reasons.
Please do not use this SMTP Service for:

Sending out large quantities of mail to multiple recipients (ie, running a mailing list) – please consider using the installed mailing list instead.
Sending large attachments (limit is 5Mb in any message, for larger files, we encourage you to use FTP).
Sending mail “from” addresses not affiliated with your accounts and services obtained from JVillalobos
Mail that could just as effectively be delivered through your dialup ISP’s mail server.
Spam!
If you meet these requirements, you may configure your mail client to use this service by setting your SMTP (Outgoing Mail) Server to:

mail.yourdomain.com

By default, this setting will reject all connections. In order to authorize yourself to send mail, you must first use your mail program to check your account for new mail. After you have checked mail, you will be authorized to send mail through mail.yourdomain.com for up to fifteen minutes.

This service relies on what is known as POP-before-SMTP authentication. SMTP, the Internet’s mail transmission protocol, has no authentication, there is no reliable way to determine if a particular sender is allowed to send mail to an external address. Unlike a traditional ISP, we cannot determine if a sender is a customer by checking their IP address.

However, all of our customers have mailboxes that are accessible through POP3. POP3 is a mail retrieval protocol, and does have authentication built-in. Therefore, any customer who legitimately accesses a mailbox on our servers using POP3 is automatically authorized, for a period of up to fifteen minutes, to send outgoing mail through our relay service.

Please note that many ISPs, including America Online and Mindspring, will not allow access to an external SMTP server. This is most commonly implemented by blocking traffic to port 25, the SMTP port. If your ISP filters port 25 and your mail client can not be set to use a different port, or if your ISP filters by some other means, you will not be able to use our SMTP service at mail.yourdomain.com. If you are a subscriber of one of these services, please contact your ISP for assistance in using SMTP to send mail.

8.5 Background Running Programs: We MAY allow programs to run continually in the background. BUT, these are considered on a one-to-one basis and an extra charge will be incurred based on system resources used and operational maintenance needed. You need to contact us first before installing any such program.

8.6 IRC: We currently do not allow IRC or IRC bots to be operated on our servers.

8.7 Backup Policies: We strive to backup all of our customer data once a day. These backups are meant for whole servers, not just individual accounts. In other words, if the whole server fails, we may be able to restore ALL server accounts. However, if you have lost data through no fault of JVillalobos, you may be charged a $25-$500 restoration fee. Customers must therefore ensure that their accounts are individually backed up by themselves from time to time. Also, please be aware that restoring all accounts on a given server after a server crash can take up to 72 hours. A customer with a personal, current backup may, at times, be able to restore their own account faster than we can. Customers may request to have their databases emailed to them on regular schedule as another backup option.

9. Intellectual Property Rights
Material accessible to you through JVillalobos’s services may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use JVillalobos or its servers and network in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the JVillalobos network. If you use a domain name in connection with JVillalobos or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.

10. Network Security
Customers may not use JVillalobos network with an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the customer, logging into a server or account the customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization’s security policy. Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. JVillalobos will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.

11. Electronic Commerce
You will be solely responsible for the development, operation and maintenance of your online store and products and all contents and materials appearing online or on your products, including without limitation (a) the accuracy and appropriateness of content and materials appearing within the store or related to your products, (b) ensuring that the content and materials appearing within the store or related to your products do not violate or infringe upon the rights of any third party, and (c) ensuring that the content and materials appearing within the store or related to your products are not libelous or otherwise illegal. You will be solely responsible for the final calculation and application of shipping and sales tax. You will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom. You are also responsible for the security of any customer credit card numbers and related customer information you may access as a result of conducting electronic commerce transactions through your Web Site. You will keep all such information confidential and will use the same degree of care and security as you use with your confidential information.

12. Static / Dynamic Content Caching
You expressly grant to JVillalobos a license to cache the entirety of your Web Site, including content supplied by third parties, hosted by JVillalobos under this Agreement and agree that such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.

13. IP Address Ownership
JVillalobos shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by JVillalobos and JVillalobos reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
14. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
(a) THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, WHICH ARE HEREBY DISCLAIMED.
(b) JVillalobos SHALL NOT BE LIABLE FOR (1) ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR (2) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) REGARDLESS OF THE FORM OR ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF JVillalobos HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. JVillalobos’S LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO JVillalobos DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ABSENT SUCH LIMITATIONS JVillalobos WOULD NOT ENTER INTO THIS AGREEMENT.

15. Governing Body
This Agreement shall be governed solely by the laws of the State of California, excluding its principles of conflicts of laws. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in San Francisco, CA, and each party hereby submits to the personal jurisdiction of such Courts. Each Party agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules and regulations of the United States governing the export of technical information. Customer may not assign this Agreement without the prior, written permission of JVillalobos Any purported assignment will be void and without any effect. This Agreement may not be modified or amended except in writing, signed by both Parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect. Neither Party may waive any right hereunder except expressly and in writing. Any other purported waiver of any such right shall be without any effect. This Agreement is the entire agreement between the Parties with respect to this subject matter, and supersedes all prior and contemporaneous discussions, negotiations, communications and agreements with respect thereto.

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