Hosting Terms and Conditions
These terms and conditions are the terms on which we provide the Service to you. They apply to us and to you. These terms supersede prior agreements.
These terms also apply to every user of the Service. It is a condition of your use of the Service that:
- you comply with these terms and conditions;
- you make every User aware of these terms and conditions; and
- you ensure that every User complies with these terms and conditions.
CHANGES TO THESE TERMS AND CONDITIONS
These terms and conditions are subject to change as time goes by.
We will give you notice of the change and you will then be obliged to comply with the new terms and conditions as amended or cease using the Service.
DURATION OF THIS AGREEMENT.
This agreement commences on the date you sign up for the Service by:
- Emailing your approval to host your website with Smargasy Inc and/or;
- Signing and returning a purchase order to us.
This agreement continues until either party terminates by 14 days notice in writing to the other party. On termination or expiry of this agreement for any reason:
- our obligation to provide the Service to you ceases;
- you must not attempt to use or access the Service after the date of termination;
- each party’s rights and obligations accrued prior to termination are not affected;
- we may delete all of your data from any storage media; and
- clauses 7 and 9 continue.
If Smargasy Inc terminates the Service for any reason, then this agreement will terminate automatically. In that case, unless Smargasy Inc terminated this agreement due to failure by you or a User to comply with these terms and conditions, you will be entitled to a pro-rata refund of any pre-paid hosting fees.
2. Server / Network Maintenance.
In order to keep its servers up to date, Smargasy Inc will perform scheduled maintenance to servers from time to time. We reserve the right to suspend access to the server during the time required for the scheduled maintenance.
Smargasy Inc will attempt to perform all scheduled maintenance at off-peak time. If the maintenance period is expected to last for more than 30 minutes Smargasy Inc will post a notice regarding the maintenance to its announce mail list.
Unscheduled maintenance may need to be performed. During this time the server may be off-line. In this case a notice regarding the maintenance will be posted after it is done.
3. Client Data and Data Backup.
UPLOADING CLIENT DATA
Except for intellectual property rights in the Client Data, Smargasy Inc will own all intellectual property rights created during the course of providing the Service.
Subject to this clause 3 and the Acceptable Use Policy, you and your Users may upload content that you wish to be part of your website, in the manner and form and at the times directed by Smargasy Inc from time to time.
You must ensure that all Client Data:
- complies with any content standards set by Smargasy Inc from time to time;
- complies with the Acceptable Use Policy;
- complies with all Laws; and
- does not infringe the intellectual property rights of any person.
Smargasy Inc may remove any Client Data it considers unsuitable.
It is your responsibility to maintain local copies of your web content and information. Smargasy Inc performs weekly snapshots of all server data and daily incremental backup of all system and Client Data. However, we strongly recommend that all users keep their own recent copy of their sites for any unforeseen events. Backups are made for server restoration purposes only. In the event of equipment failure or data corruption, you should be prepared to re-upload your data to your account.
UPDATES OF WEBSITE SOFTWARE
From time to time Smargasy Inc may provide updates to the website software used to run your website. It is your responsibility to update your website to the new version of the software. If you do not update to the new version of the software, then:
- the security of your website and Client Data may be compromised
4. Sub-domains and Account Rights.
Smargasy Inc may provide some domain names to be used as sub-domains. These domain names (and all sub-domains of these domains) will remain the property of Smargasy Inc.
The domain names (and all sub-domains of those domains) are provided at Smargasy Inc’s discretion. We make no guarantee that:
- you will be provided with a domain name or sub-domain by Smargasy Inc;
- any particular domain name is or will continue to be available for you to use; or
- no domain name is or will be registered which conflicts with your preferred domain name or otherwise affects use of your domain name.
If any dispute arises in relation to a domain name provided by Smargasy Inc, then Smargasy Inc may withhold, suspend or cancel the domain name.
We are not liable to you or any other person for any cost, loss or liability (including loss of profit or other consequential damage) arising from Smargasy Inc’s supply or failure or delay in supplying these sub-domains.
At the time that you sign up for the Services, you must select a website hosting plan from those offered in your quotation. Each website hosting plan comes at a different cost, and offers a different level of service. The hosting plan you select will determine the:
- disk space (web files, email and database);
- maximum monthly level of traffic usage before incurring extra traffic costs;
- number of domains, sub-domains and domain aliases;
- mySQL databases; and
- email accounts,
that is included in the Services.
You must not resell the Services without our express permission. Reselling of the Services without our express permission will bring you into breach of this agreement.
ACCESS TO ACCOUNT
Access to your account using the Service includes access to:
- your website;
- file access: files stored on the website/hosting account;
- your mail accounts
You can obtain access to your account through the username and password that we assign to you. It is your responsibility to maintain the confidentiality of your username, password and other account information.
IP ADDRESS OWNERSHIP
Smargasy Inc shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by Smargasy Inc.. Smargasy Inc. reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
TECHNICAL SUPPORT AND OTHER ADDITIONAL SERVICES
The Fees include the provision of normal web hosting and server maintenance services.
Smargasy Inc. provides technical support for you that encompasses within our area of expertise only. Such expertise includes assistance, troubleshooting, and debugging of our Interworx control panel interface, servers within our immediate responsibility and any other hosting related issues.
Unlike many hosting companies We do our best to help with scripts, templates and programming languages. However, under no circumstances is Smargasy Inc. obligated to help you in the installations of new application modules, templates and/or programming languages, nor in providing assistance for any errors produced by any applications that have been modified by you previously.
SUSPENSION OR TERMINATION OF ACCOUNT
We may monitor your account and the conduct of your account (but we have no responsibility to do so) to determine whether you and all Users are complying with this agreement.
We reserve the right to suspend your account, or terminate your account with immediate effect without notice, if:
- we believe that your use of the Service may be in breach of any law;
- we believe that you or a User has committed a breach of this agreement;
- we believe that your use of the Service may compromise or have an adverse effect on our systems or networks, or Smargasy Inc’s systems or networks;
If we believe that your use of the Service may be in breach of any law, then we may notify the relevant authorities, and provide them with relevant information as appears appropriate in the circumstances.
You agree that you will have no claim against Smargasy Inc in respect of any action reasonably taken by us or Smargasy Inc under this clause 4, and you indemnify Smargasy Inc against any claim by a User arising out of the same.
At the commencement of this agreement, the following billing method is implemented:
- monthly, quarterly or annual billing for the hosting fees applicable to your Hosting Plan;
You must pay all Service charges, minimum charges and other amounts incurred by you or any User or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option you selected.
You are liable to pay the following fees:
- the setup fee (if any) that we advise you of at the commencement of the agreement;
- fees for Excess Traffic Usage (if any) for each month, and
- fees for Excess Storage (if any) for each month,
- fees for Additional Services (eg: domains, SSL Certificates etc. If any) that you request us to perform,
collectively, the Fees.
The hosting fees are charged one period in advance. The Fees are exclusive of any registration or delegation charges imposed by domain name authorities or your ISP.
The fees for Excess Traffic Usage and Additional Services are charged at the end of the month for the previous month, unless other arrangements are made in writing with Smargasy Inc.
At the time of purchase, the client will pay the setup fee (if applicable) and prepay a recurring amount for the selected hosting period. Charges for Excess Traffic Usage (web, ftp and mail) and Additional Services will be billed retrospectively, for the previous month.
CHANGES TO FEES.
Our current Fees are set out in your quotation. They will apply to you for the duration of the billing period.
We reserve the right to change our Fees. If we change our Fees, then we will provide you with notice of the changed Fees through the Smargasy Inc website, or email to clients. The new fees will apply from the date that your pre-paid billing period expires.
Your invoice will be sent to you at the time the payment is due. You must pay as indicated on the invoice sent to you from Smargasy Inc.
We reserve the right to immediately terminate the Service if payment is not received timely.
Smargasy Inc is not responsible for data integrity on accounts suspended for non-payment.
6. Limitations of Service
You acknowledge that, due to the inherent risks of the internet, and of computer-based networks and systems:
- the services provided under this agreement will not be uninterrupted or error free;
- the services may not meet your requirements; and
- your data may not be secure or protected from loss or corruption, and data loss or corruption may occur due to delays, service interruptions or other reasons.
To the extent permitted by applicable law Smargasy Inc. disclaims any and all warranties including the implied warranties or merchantability, fitness for a particular purpose and non-infringement. To the extent permitted by applicable law all services are provided on an “As Is” basis.
7. Limitation of Damages
Neither party shall be liable to the other for any lost profits or any indirect, special incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of Smargasy Inc. and any of its employees, agents or affiliates, under any theory of the law (including breach of contract, tort, strict liability and infringement) shall be a payment of money not to exceed the amount payable by customer for the three months service.
8. You agree to abide by Smargasy Inc’s Acceptable Use Policy.
You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
You must, and you must ensure that any User does, comply with the Acceptable Use Policy at all times in relation to the Service.
Smargasy Inc reserves the right to immediately discontinue service to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy, and these terms and conditions. We are not liable for any Losses that you suffer as a result of any such discontinuation.
9. You indemnify us.
The Client agrees to indemnify and hold harmless Smargasy Inc and the employees and agents of Smargasy Inc (together, “Indemnified Parties”) 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 Subscriber’s use of the Services and Products, and will reimburse each 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.
This clause 9 does not apply:
- if you are a Consumer, in relation to any Losses that arise from our breach of a Consumer Guarantee or Title Guarantee;
- in relation to Consumer Goods or Consumer Services we supply to you; or
- to the extent that it is not Fair or Reasonable for us to rely on it.
10. Governing Law
The Agreement shall be governed by the laws of the State of Florida, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
11. ACCEPTABLE USE POLICY
This is Smargasy Inc’s Web Hosting Acceptable Use Policy. It applies to all Customers and all Users.
If the Acceptable Use Policy changes:
- Smargasy Inc will notify you of the change through the website or by email to clients, or both;
- the new Acceptable Use Policy will apply from the date that Smargasy Inc notifies you of it; and
- if you disagree with the new Acceptable Use Policy, you may terminate this agreement by providing 14 days’ notice to Smargasy Inc as set out in clause 1.
Smargasy Inc is not responsible for the content of traffic:
- We exercise no supervision or control whatsoever over the content of the information passing through our network.
- We accept no responsibility for the consequences of unauthorised breach of our system security such as hacking or denial of service attacks.
You are responsible for use of your account. If you permit others to use our service, you are responsible for making users of the service aware of this policy and obtaining compliance of your users with this policy.
You may use the service for the purpose of web site hosting so long as such use is legal and does not constitute an unacceptable use.
Smargasy Inc does NOT allow ADULT material of any kind. Adult material includes nudity, porn, etc. Links to other web sites containing adult material are NOT permitted either. The Service Provider reserves full right to suspend any account that does not comply with this guideline.
You may not use the Service for any purpose that violates local, State, Federal or international laws.
You may not use the Service for spamming (sending unsolicited advertising to those with which the customer has no existing business relationship, posting off-topic advertising in newsgroups); spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message), generating extremely high volumes of outgoing mail than a normal user, and subscribing someone else to an electronic mailing list without that person’s permission.
Smargasy Inc’s services may not be used as a conduit of spam, or for transit of spam, or for activities relating to the propagation of spam or benefiting thereof. Smargasy Inc remains the final arbitrator of what is or is not considered spam on Smargasy Inc’s network.
Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email.
You may not abuse our server resources. Running programs in the background on our server without our prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of Smargasy Inc’s servers. In addition any domain that exceeds reasonable bandwidth usage can be terminated without prior notice.
You may not use Smargasy Inc’s servers for development purposes. The Client’s web site must be fully developed and tested before it can be moved to our servers. If we find excessive number of errors in the web log files of your account, we reserve the right to suspend your account without prior notice until your web site is debugged.
You may not use your Smargasy Inc hosting account as a download repository. If you plan to offer files, other than web page files, for downloading, including music and video files, you must negotiate the terms with Smargasy Inc. We reserve the right to suspend such accounts without prior notice.
You may not use your account for hacking/cracking. We reserve the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.
The Customer is responsible for all activity originating from the account unless proven to be a victim of outside hacking or address forgery. The Customer is responsible for securing their username/password.
We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.
We may suspend or terminate your account and/or notify the authorities. If we believe that your use of the service may break the law or that you have not complied with this policy we may warn you by email (but we are not obliged to do so); suspend your access to the service; terminate your account without notice; and/or notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
You agree that you will have no claim against Smargasy Inc in respect of any action reasonably taken by Smargasy Inc in its implementation of the terms of this Acceptable Use Policy, and you indemnify Smargasy Inc against any claim by a User arising out of the same.
Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
This agreement does not create a relationship of employment, agency or partnership between the parties.
We may subcontract our obligations under this agreement.
The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.
If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.