Web Hosting Service Agreement - Acceptable Use Policy
This Web Hosting Service Agreement and Acceptable Use Policy (“Agreement”) sets forth the terms and conditions of your use of ServerNest GmbH, a swiss limited liability company based in Zürich (“ServerNest” or “we”) for web hosting services, for registration of a domain name on the Internet and/or for rental of space on our dedicated servers. By ordering (whether online, by mail, by phone or otherwise) or using our services in any way you are agreeing to be bound by the terms and conditions of service below. To become a ServerNest account holder,(“Customer” or “you”), you agree to be bound by all terms and conditions of this Agreement, the fee schedules on the Online Order forms and any policies that are or may be published by ServerNest. You further certify that you are at least 18 years of age and have the legal capacity to enter into this Agreement. Notwithstanding the foregoing, all orders are subject to acceptance by ServerNest.
1. Scope of Services and Your Obligations
1.1 The Services. This Agreement defines the terms and conditions of ServerNest's services as offered by ServerNest and used by the Customer, including the provision of web hosting services on ServerNest's servers, connectivity to the Internet and if applicable, domain name reservation (the “Services”). ServerNest will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, ServerNest maintains control and ownership of any and all Internet protocol (“IP”) numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.
1.2 Control Panel. As part of the Services, upon payment of the hosting fees and any non-refundable set-up or domain name registration fee, ServerNest will also provide you access to your web-based control panel (the “Control Panel”) containing links to your payment history, summaries of the Services you have chosen, newsletters and other current information relating to the Services.
1.3 Upload Materials. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the “Upload Materials”) to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activities originating from your website. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability; CGI-scripts requires knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, PHP, Python, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. ServerNest assumes no responsibility to provide you with such knowledge. Customer assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party websites, (b) the accuracy of the Upload Materials on the website, including, without limitation, Customer content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Upload Materials do not infringe or violate any right of any third party.
1.4 Tools. In connection with the Services, ServerNest may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for designing websites (collectively, the “Tools”). Access to these Tools may be accessed via your Control Panel. These Tools are copyrighted and proprietary property owned by ServerNest or its suppliers.
1.5 Proprietary Rights. Without limiting the generality of the foregoing, all materials, including but not limited to any computer software (in object code and source code form), the Tools, the Control Panel, data or information developed or provided by ServerNest or its suppliers under this Agreement, and any know-how, methodologies, equipment or processes used by ServerNest to provide the Services to Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein or appurtenant thereto (collectively, “ServerNest Materials”) shall remain the sole and exclusive property of ServerNest or its suppliers. To the extent, if any, that ownership of the ServerNest Materials does not automatically vest in ServerNest by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to ServerNest all rights, title and interest which Customer may have in and to the ServerNest Materials. Customer acknowledges and agrees that ServerNest is in the business of hosting websites, and that ServerNest shall have the right to provide third parties services which are the same or similar to the Services and to use or otherwise exploit any ServerNest Materials in providing such services. To the extent that such ServerNest Materials are provided to you, you are granted a nonexclusive, non-transferable license to use the ServerNest Materials in object-code form only for your internal use, solely in connection with the Services provided under this Agreement. You shall have no right and agree not to modify, reverse engineer or duplicate the ServerNest materials or any portions thereof.
1.6 Data Back-Ups. For server restoration purposes only, ServerNest makes back-ups of websites and databases weekly, and back-ups of new/changed data nightly; however, ServerNest makes no guarantees of any kind, either expressed or implied, as to the integrity or accuracy of these back-ups. You are solely responsible to maintain local copies of your website. If loss of data occurs solely and directly due to an error of ServerNest and you notify us immediately of such loss of data, ServerNest will undertake commercially reasonable efforts to attempt to recover the data for no charge. Otherwise, upon your written request and subject to archive availability and ServerNest's ability to do so (in its sole discretion), ServerNest will attempt to recover the data from the most recent archive for a 25 EUR fee.
1.7 Monitoring the Services. ServerNest reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. ServerNest will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity of which it becomes aware.
1.8 CDA and DMCA. It is not ServerNest's intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the “CDA”) or any other applicable law. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the “DMCA”) and acknowledge that ServerNest is a “service provider” under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, ServerNest will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, ServerNest has a policy of terminating accountholders who infringe copyright.
1.9 No Endorsement or Approval of Websites. Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on ServerNest's servers nor the links to other websites are screened, approved, reviewed or endorsed by ServerNest. ServerNest is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not ServerNest's statements of advice, opinion or information.
1.10 Users. Customer understands, acknowledges and agrees that by using the domain on or any service of ServerNest, Customer and its users ratify and are bound by this Agreement and you are responsible for ensuring your users comply with the terms and conditions contained herein, including without limitation, any use restrictions. Any agent (including without limitation, a webmaster, internet service provider or employee) acting on Customer’s or user’s behalf, represents and warrants to ServerNest that the agent is authorized to bind Customer hereto and that it has fully and thoroughly advised Customer of the terms and conditions of this Agreement. You agree that if you license the use of your domain name to a third party, you remain the domain name owner, and remain responsible for all obligations under this Agreement.
1.11 Availability. ServerNest will exercise commercially reasonable efforts to make website accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Services due to causes beyond the control of ServerNest or which are not reasonably foreseeable by ServerNest, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Services, Customer’s sole and exclusive remedy and ServerNest's sole and exclusive liability for any loss or interruption of Services shall be as follows: for loss or interruption of Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of ServerNest, or (iii) causes which are not reasonably foreseeable by ServerNest, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Services equal to a pro-rata portion of Services fees for the period of downtime (which shall be a pro-rata portion of the Services fees for the Payment Interval selected by Customer for the Services).
1.12 Refusal of Service. ServerNest shall be the sole arbiter of what is and is not a violation of these terms and conditions, including, without limitation, the acceptable use policies. ServerNest reserves the right to terminate any account at any time and for any reason. ServerNest reserves the right to delete all content and files upon termination. ServerNest reserves the right to withhold any pre-paid funds for any site removed for violations of these policies. ServerNest reserves the right to refuse, cancel, or suspend service at our sole discretion.
2. Limited Warranty; Limitation of Liability; Indemnification
2.1 Limited Warranty. You acknowledge that the Services are provided “as is.” Neither SERVERNEST nor any of its managers, members, employees or agents, warrant that the Services will be uninterrupted, error free or free from viruses or other harmful components. SERVERNEST is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, validity and/or completeness of the data or the services, including without limitation any implied warranties of noninfringement, merchantability or fitness for a particular purpose of THE SERVICES OR information available on its servers or residing on or passing through its interconnecting networks. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVERNEST, OUR AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. Use of information obtained from or through the Services is at your risk. Under no circumstances will SERVERNEST be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
2.2 Limitation of Liability. SERVERNEST SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (“SPECIAL DAMAGES”) EVEN IF SERVERNEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,SERVERNEST shall not be responsible for any claimed damages, including SPECIAL damages, which may arise from SERVERNEST’s servers going off-line or being unavailable for any reason whatsoever. Further, SERVERNEST shall not be responsible for any claimed damages, including SPECIAL damages, resulting from the corruption or deletion of any website from one of SERVERNEST’s servers. All damages shall be limited to the immediate termination of your service and a pro-rated refund of any pre-paid fees, exclusive of set-up fees and if applicable, the domain name registration fee, which fees are non-refundable. In no event shall SERVERNEST’s maximum liability UNDER THIS AGREEMENT exceed the total amount actually paid by you to SERVERNEST for the Services during the prior twelve (12) months. To the extent applicable state law does not allow the limitation of liability for consequential or incidental damages, SERVERNEST’s liability is limited to the maximum extent permitted by law.
SERVERNEST will not be held responsible for any problems that a customer’s user(s) may have. We will exercise commercially reasonable efforts to make your website available on the internet. However, we disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your Website; (8) loss or liability from your inability to use our mail service; or (9) loss or liability from the use of our mail service; or (10) loss or liability that you may incur in connection with our processing of your application for our Services, our processing of any authorized modification to your domain name registration record or your failure to pay any fees, including, if applicable, the initial DOMAIN NAME registration fee or DOMAIN NAME renewal fee.
2.3 Indemnification. You agree to indemnify, defend and hold ServerNest and its affiliates, managers, members, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto ServerNest’s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to ServerNest’s equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s), your user(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by ServerNest’s gross negligence or wilful misconduct; (d) any other damage arising from your equipment or your business; or (e) any breach of any representation or warranty made by you under this Agreement.
3. Payment of Fees – Billing
3.1 Fees for Services Packages. A listing of the current fees for the Services packages are set forth on http://www.ServerNest.com. Customers can elect to pay for such Services packages on a monthly or annual basis (each, a “Payment Interval”). Monthly Services packages are subject to a 20EUR non-refundable set-up fee. Payments must be submitted in advance of receiving the Services.
3.2 Billing Information. You agree to provide ServerNest with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and applicable payment date and to update this information immediately if any change occurs. You must secure your account with a valid credit card. Upon your authorization on the Online Order form, the initial fee (including any set-up fees and if applicable, a domain name registration fee) and any additional fees or renewal for a subsequent Payment Interval are due are must be paid to secure the account; ServerNest will charge the credit card only as instructed by you.
3.3 Accepted Payment Methods. All fees shall be paid in EUR. Any credit cards processed by Paypal(TM) and wire transfer are acceptable payment methods.
3.4 Invoice. ServerNest will invoice you by e-mail for fees incurred under your contract. You agree to pay the invoice within 4 weeks of the invoice date. We send invoices to the email address we have on file so please keep your contact information current.
3.5 Taxes. Client shall pay or reimburse ServerNest for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by ServerNest under this Agreement; excluding, however, income taxes on profits which may be levied against ServerNest.
3.6 Modification of Fees or Packages by ServerNest. ServerNest will publish a notice of fee increases on its website 30 days before such increases take effect. ServerNest also reserves the right to change the packages that we offer in any way. We will exercise reasonable efforts to publish a notice on our website 30 days before any package change, but we shall have no obligation to do so.
3.7 Modification of Packages by Customer. In the event you decide to modify the annual package you selected, you shall notify us in writing and your account will be credited on a pro-rated basis for any unused portion of pre-paid fees and the new annual package will be billed for twelve months. By way of illustration, if you select the 1-year plan for 'A' Services package and after two months determine that you need additional bandwidth and notify us in writing that you wish to upgrade to the plan 'B' package, then ServerNest will credit to your account the cost of ten months of plan 'A' Services (based on the annual fee for fildeliBronze) and charge to your account the cost of twelve months of plan 'B' Services (based on the annual fee for plan 'B'). Upon payment of the difference, ServerNest will make the upgraded package available to you. If you decide to downgrade your Services package, a similar calculation will be made; provided, however, any overpayment will not be refunded, but instead be used to offset future Services fees under the account. By way of illustration if you select the 1-year plan for plan 'B' Services package and after two months determine that you do not need the bandwidth provided and notify us in writing that you wish to downgrade to the plan 'A' Services package, then ServerNest will credit to your account the cost of ten months of plan 'B' Services (based on the annual fee for plan 'A') and charge to your account the cost of twelve months of plan 'A' Services (based on the annual fee for plan 'A'). As mentioned above, any positive credit balance on your account will be used to offset other Services fees associated with your account. The same principle will be applied if you are a monthly accountholder. If you decide to upgrade or downgrade your monthly package, your account will be credited for the remaining days of the monthly service for the package you previously selected and your account will be charged for one month of the newly selected package. For the purposes of this Section 3.7, all pro-rated amounts will be calculated on a per-day basis.
3.8 Delinquent Accounts. Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent, and ServerNest will insert a message at your website notifying users that the account has been suspended. In addition, failure of Customer to fully pay any fees within ten (10) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by ServerNest, and will be sufficient cause for immediate termination of this Agreement by ServerNest. Any such suspension does not relieve Customer from paying past due fees plus interest at a rate of 1.5% per month or if less, the maximum allowable by law and in the event of collection enforcement, Customer shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees. New accounts for which payment has not been received are subject to suspension after 10 days. Accounts for which payment is not remitted 10 days past suspension will be deleted from our servers. In the event a Customer requires files from a deleted account, a 50 EUR backup fee will apply if a suitable backup can be found. There is no guarantee that a suitable backup will be found after an account has been deleted. You acknowledge responsibility for your account until payment in full is made.
3.9 Renewal. By not canceling before the beginning of the next Payment Interval, you are agreeing to renew the Services and authorize ServerNest to invoice you.
3.10 Chargebacks/Credit Card Disputes. If you dispute the credit card charge that we charge for our Services, we reserve the right to suspend your website as soon as we are informed of it. Please contact us at +41 78 797 4245 to talk over a credit card charge if you feel that there is a mistake before you contact the credit card company.
3.11 Refund Policy for Cancelled Accounts.
a. On new accounts that are cancelled within 30 days of the original order date, we will give a full refund of the hosting fees. Set-up fees and if applicable, domain name registration fees are non-refundable. Please note: This offer applies only to new accounts opened, and not on subsequent re-openings of the same account.
b. For the cancellation of annual prepaid accounts we will refund the unused portion of hosting fees if at the time of cancellation the remaining term of Services is equal to one month hosting or more; if the account is cancelled after 15 days into the final month of the annual term, no refund will be issued.
c. For monthly pre-paid accounts we only refund unused hosting fees if the account is cancelled before or on the first day of the billing cycle. If the account is cancelled within 5 days of the first day of the billing cycle AND the cancellation form includes a request to refund remaining fees if any are available, a credit may be issued upon our approval, in our discretion. If the account is more than 5 days into the billing cycle, no refund is issued.
d. Refunds for reseller accounts are handled as regular monthly accounts, as outlined in item Section 3.11(c) above; provided, however, any refund amounts that are the result of a reseller account being cancelled will be applied as a credit to the reseller’s primary hosting account. If a refund for an annually prepaid resold account needs to be issued to the credit card on which it was charged, this must be requested at the time of cancellation.
e. All requests for refunds of hosting fees in the last month of your contract are subject to approval by our billing manager, in our sole discretion.
f. Due to the costs of setting up and canceling accounts, if you have cancelled any account with ServerNest more than 2 times, we may request that you either sign and fax in a yearly contract or pay a 20EUR non-refundable set-up fee for each additional account that you set up.
4. Acceptable Uses
You are responsible for all use of your website, with or without your knowledge or consent. Violations of ServerNest’s acceptable uses may result in criminal and civil liability. ServerNest will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. We reserve the right to investigate files in a Customer’s account at any time if we have any reason to suspect there may be activities or network security violations ServerNest reserves the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.
4.1 Compliance with Laws. All services provided by ServerNest may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any swiss Federal, Cantonal, City or Local law is prohibited. Such violations include, but are not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating swiss export restrictions; stalking; or violating other Federal, Cantonal law. Sites that promote any illegal activity or present content that may be damaging to ServerNest servers or any other server on the Internet are prohibited. Links to such materials are also prohibited.
Examples of unacceptable content or links:
* Pirated software
* Hacker / Cracker programs or archives such as Rootkits, malware
* Warez sites
The above listing is not complete by any means. ServerNest will be the sole arbiter as to what constitutes a violation of this provision.
If links to any offending sites are found, we will ask you to remove them and if you do not comply, we will remove your account from our server. ServerNest has the complete right to ask anyone to leave for any offending reason at our discretion. At ServerNest’s discretion, access to ServerNest’s system (and your account) may be revoked at any time for abusive conduct on the system and/or the Internet and its resources as a whole.
4.2 Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain.
You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. You may not post, upload or otherwise distribute copyrighted material on ServerNest’s servers without the consent of the copyright holder.
Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX.
4.3 Email Use. The following terms and conditions shall apply to all e-mail use under your account, whether sent by you or users of your website.
Unacceptable affronts to netiquette and unacceptable activities with regards to e-mail use may result in immediate cancellation of the Services and deletion of your website; such activities include, but are not limited to, the following:
* Spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off-topic advertising in newsgroups), or the sending of unsolicited e-mail or message board posts including, without limitation, commercial advertising and informational announcements, from our server(s) or using an e-mail address or domain that is maintained on ServerNest machine as reference in that spam is STRICTLY prohibited. Domains and sites which spam are subject to being cancelled immediately off of our server. A user shall not use another site’s mail server to relay mail without the express permission of the site. ServerNest will be the sole arbiter as to what constitutes a violation of these provisions.
* Spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you);
* Passive spamming (promoting a website hosted by ServerNest by spamming from some other source);
* Trolling (posting controversial messages in newsgroups to generate responses);
* Mailbombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user (over 10% of available system resources);
* Propagating chain letters; and subscribing someone else to an electronic mailing list without that person’s permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages.
* 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. If you are repeatedly mail