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1. ACCOUNT SETUP
1.1. All account(s) setups will occur after we have successfully received full payment for all services and DavesWebdesigning Fraud center or our payment partner(s) have screened the order(s) for fraud. It is your responsibility to provide us with at least one valid E-mail address of which is not @ domain(s) you are signing up under.
2. SPAMMING IS NOT PERMITTED – ZERO TOLERANCE
2.1. Do not advertise or put our link on any site that is promoted in any way related to unsolicited
E-mail, ICQ or IRC spams, or newsgroup postings. Opt-in E-mail newsletters require pre-approval. If we receive spam complaints, your link will be disabled, your account will be immediately terminated, and we will take LEGAL ACTION against you. Please be aware, MRG lists are not acceptable, as well
as, any other program that hides the sender E-mail address. We terminate sites without notification when any of these types of programs are discovered.
3. BULK E-MAIL
3.1. We also monitor "Bulk E-mail". While c-Panel has a mailing list program installed, any mailing over 2500 messages must be pre-approved. In addition, any site sending over 5000 messages per month will be considered "Bulk". Bulk e-mail ties up the mail queue and delays messages for other clients. Therefore, we must limit the amount of use on any shared server. There are some arrangements that can be made to accommodate a user with a large list which includes extra fees and special mail scheduling software. Please be aware that posting to Free for All web pages could generate "bulk
E-mail" from Auto Responders of the FFA list users you have posted to. We may need to take action if these Auto Responders are spamming the server and causing the mail queue too many delays.
4. ALLOWED SITES
4.1. Your site must be legal in representation and abide by all laws within the United States of America. Any adult site hosted at DavesWebdesigning, LLC most maintain records with ages individual photographed and material content to ensure it meets all current United States of America laws.
4.2. Child Pornography - Company will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over Company network, and will be liable for illegal material posted by their clients.
According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
Violations of the Child Protection Act should be reported to the U.S. Customs Agency at:
1-800-BEALERT.
4.3. Although we do not monitor the content of all sites all of the time, we will not host Web sites that have warez, extremely offensive, or illegal content, or link to Web sites that have illegal content. Any such complaint or notification of “confirmed” content authorizes immediate termination.
4.4. The Web site cannot attempt to download any virus or malicious or annoying files when opened. IRC bots, programs, or networks of any kind are not allowed. If an IRC program is discovered, immediate termination will result without warning. The following processes are illegal on our servers and will be killed automatically: BitchX, bnc, eggdrop, guardservices, ircd, psyBNC, ptlink, services.
4.5. Web sites with processes that consume or take the server load to an unmanageable level will have that process terminated immediately. Accounts granted SSH access that is found to have processes running in this same manner will have SSH access deactivated for a minimum of 6 months.
5. THE PROGRAM'S RIGHTS
5.1. We reserve the right, at our request, to see all referring pages and servers logs if necessary. If illegal content is discovered, upon request, we will turn over all site related documents, files and
logs to the proper authorities. We reserve the right to terminate webmasters or clients without payment who make derogatory comments about the program or employees of DavesWebdesigning. We reserve the right to suspend or terminate at will for nonpayment. Sites suspended for nonpayment wishing to become unsuspended, may be required to pay for an entire year in advance to leave suspended status and must pay a $10.00 reactivation fee, per incident. In addition, all back
payment(s) due, must be collected before activation.
6. HOSTING PACKAGES & DOMAIN NAMES
6.1. DavesWebdesigning hosting plans are set to give our clients the most useful tools available to manage the accounts. You will not be charge a set up fee for any of our paid plans. Additional assistance may be requested at a fee of $25.00 an hour. If you choice the initial hosting setup consultation this is a (1) hour informational instruction on the basic setup and use of our control panel and billing system. Additional fees may apply to clients who reside outside the USA, due to phone charges. We will advise you prior to the actual phone call with any additional fees. If the occurrence of any hidden phone charges due to location that are revealed prior to the call we reserve the right to charge those fee to the clients account. If the setup fee is determined to be too great a cost, the initial setup fee may be refunded as a credit to that clients account.
6.2. Annual Hosting plans that are paid in at a discounted rate. The discounts warrant DavesWebdesigning to require a 12 month term agreement to cover the discounted annually hosting fees. When a discounted annual hosting plan is ordered, the user agrees to a term of 12 months of hosting with the DavesWebdesigning Web Hosting Network. At any time after the 30 day money back guaranteed grace period a client decides to terminate service any and all month/months up to termination date (prorated to the end of that current month) will be charged at the regular monthly hosting cost for that plan, plus a $25.00 termination fee will be assessed on your account.
6.3. Certain fees are nonrefundable due to work completed and time spent. These include but are not limited to the following circumstances: Domain Name Purchases, SSL Purchases, Copyright Services, and Setup Fees for Hosting and Website design.
6.3.a. Domain Fees. As consideration for the Service(s), renewal of the Service(s), and, if you select it, automatic renewal of the Service(s), you agree to pay, prior to the effectiveness of the desired Service(s), the applicable Service(s) fees. All fees are nonrefundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then current registration term, unless this Agreement specifically provides for a refund. At our option, we may require that you pay fees through a particular payment means (such as by credit card or by wire transfer) or that you change from one payment provider to another.
6.4. EXPIRATION AND RENEWAL OF SERVICE(S). You acknowledge that it is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. As a convenience to you, and not as a binding commitment, we and/or your Primary Service Provider may notify you via an e-mail message or via your account when renewal fees are due. Should these fees go unpaid, your Services will expire or be canceled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Service(s), we may attempt to renew the Service(s) a reasonable time before expiration, provided your credit card or other billing information is available and up to date. You acknowledge that it is your responsibility to keep your billing information up to date and that we are not required to, but that we may, contact you to update this information in the event that an attempted transaction is not processed successfully. *please note: for certain TLDs, the automatic renewal option is not available
6.4.a. AFTER EXPIRATION OF THE TERM OF A DOMAIN NAME REGISTRATION. Immediately after the expiration of the term of domain name registration services and before deletion of the domain name in the applicable registry's database, you acknowledge that we may direct the domain name to name-servers and IP address(es) designated by us, including, without limitation, to no IP address or to IP address(es) which host a parking page or a commercial search engine that may display advertisements, and you acknowledge that we may either leave your WHOIS information intact or that we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
6.4.b. Reactivation Period Process. For a period of approximately 30 days after expiration of the term of domain name registration services, you acknowledge that we may provide a procedure by which expired domain name registration services may be renewed. You acknowledge and agree that we may, but are not obligated to, offer this process, called the "reactivation period." You acknowledge that you assume all risks and all consequences if you wait until close to or after the expiration of the original term of domain name registration services to attempt to renew the domain name registration services. You acknowledge that we, for any reason and in our sole discretion, may choose not to offer a reactivation period and that we shall not be liable therefore. You acknowledge that reactivation period renewal processes, a $25.00 fee will charged for reactivation and may involve additional fees which we and your Primary Service Provider may determine. You acknowledge and agree that we may make expired domain name services(s) available to third parties, that we may auction off the rights to expired domain name services (the auction beginning close to the end or after the end of the reactivation period), and/or that expired domain name registration services may be re-registered to any party at any time.
6.4.c. After the reactivation period, you agree that we may either (i) discontinue the domain name registration services at any time thereafter, (ii) that we may pay the registry's registration fee or otherwise provide for the registration services to be continued, or, (iii) if we auctioned the domain name services to a third party, that we may transfer the domain name registration services to such third party.
6.4.d. In the case of (i), above, you acknowledge that certain registry administrators may provide procedures by which discontinued domain name registration services may nonetheless be renewed. You acknowledge and agree that we may, but are not obligated to, participate in this process, typically called the "Redemption Grace Period" ("RGP"). You acknowledge that we, for any reason and in our sole discretion, may choose not to participate in the RGP process with respect to any or all of your domain name registration services and that we shall not be liable therefore. If available, RGP typically ends between 30 and 42 days after the end of the reactivation period of the domain name services, as the reactivation period applied to you. The typical RGP fee is $180 plus any registration fees. You agree that we are not obliged to contact you to alert you that the domain name registration services are being discontinued.
6.4.e. In the case of (ii), above, you acknowledge that we may then set the name-servers and the DNS settings for the domain name services, that we set the DNS to point to no IP address or to IP address(es) which host parking page(s) or a commercial search engine that may display paid advertisements, and you acknowledge that we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name. You acknowledge that we do not have to pay you any of the proceeds, if any, we may earn as a result. You agree that we are not obliged to contact you to alert you that the domain name registration services are being continued. In this case, the domain name will be designated as being in the extended redemption grace period ("ERGP"), and you will be allowed to assume, during the first 120 days of the then extant registration term, complete management of the domain name services, including the right to control the DNS settings, provided that you pay a fee of $180 (US dollars) plus any registration fees. After the end of the 120-day period, if you do not exercise your rights under this provision, you agree that you have abandoned the domain name services, and relinquish all rights and use of the domain name services.
6.4.f. In the case of (iii), above, the third party who won the auction for the domain name services will control the domain name services, including control over the WHOIS information and the DNS settings. You may recover the domain name registration services for a period of up to 42 days after the end of the reactivation period, as such reactivation period applied to you. You agree that we are not obliged to contact you to alert you that the domain name registration services are or were auctioned. You acknowledge that we do not have to pay you any of the proceeds, if any, we may earn as a result of such an auction. To exercise your rights to recover auctioned domain name services, you must contact us and provide us with a certified letter addressed to "Expiration Recovery" and including documents setting forth your identity and address, which identity and address must be the same as that of the registrant as it was listed in the WHOIS information for the domain name services prior to expiration, a copy of a commonly accepted (in the United States) picture ID (such as a drivers license or passport) which supports your identity and address claim, a front and back photocopy of your credit card and you must a statement authorizing payment of the reinstatement fee to such credit card, which is $160 plus any registration fees. In doing so, you must provide us with sufficient time to allow us to receive and evaluate your documents and to contact the auction winner prior to the end of 30 days after the end of the reactivation period of the domain name services.
7. WEB SITE MAINTENANCE AND HOURLY RATES:
7.1. Web Site Packages include minor updating over the first month with the Basic and Deluxe Packages, and three months with our Enterprise Package. These plans are determined at purchase. They do not include major changes, such as changing newsletter content (which essentially involves constructing a new web page), which is billed at our hourly rate of $50.00 not including any graphic design needs which are billed at $90.00 and hour or DB work which is billed at $120.00 an hour. We offer maintenance plan which cover content updates and basic page updates. There is no purchase requirement for any maintenance plan but once purchased they can be started or canceled at the following predetermined time. 1 Month prior to required start or stop dates. Web site fees may change at any time, unless prior agreement are covered in a signed web site contract, by both the authorized client and authorized DavesWebdesigning, LLC consultant. Check our pricing pages to ensure current prices prior to any purchases.
8. NETWORK FAILURES AND ACTS OF GOD
8.1. DavesWebdesigning, LLC shall not be responsible for any delay or failure to performance due to internet and equipment failures and/or other acts outside of our reasonable control, to include all Acts of God, or Natural Disasters.
9. TERMINATION
9.1. DavesWebdesigning may terminate any service(s) at any time, due to any client, user or employee of any client to include any service maintained by DavesWebdesigning, LLC or its Partners, if found in violation of any section of this Service Agreement, with notice sent to the E-mail address designated with each accounts billing information. You will have thirty (30) days from the date this notice is sent to redeem the commissions, information, or funds left in your account. DavesWebdesigning will not be responsible for notice failures caused by an error in your E-mail program, an inaccurate E-mail address provided by you, your failure to check your E-mail, or your failure to inform DavesWebdesigning LLC. of a change in your E-mail address.
As stated in Paragraph (1.) of this agreement; It is your responsibility to provide us with at least one E-mail address which is not @ the domain(s) you are signing up under.
9.2. DavesWebdesigning employees take these terms very seriously. At any time we are directed by any outside agency such as: International, US Federal, State, any Law Enforcement Agency not herein mentioned, or Government Agency to terminate services, turnover logs, files, payments or any not mentioned information, clients will be terminated without reimbursement and/or without notification from any or all services provided by DavesWebdesigning, LLC or its Partners.
10. INDEMNIFICATION:
10.1. You shall indemnify, defend and hold DavesWebdesigning and its affiliates harmless from and against any damage, loss, expense (including reasonable attorney's fees and costs related to litigation) or penalty or any claim or action therefore, by or on behalf of any person, arising out of: (a) any material on the your Web Site as linked through DavesWebdesigning, including without limitation, those arising from claims or suits for defamation, copyright or trademark infringement, misappropriation, violation of the Lanham Act or rights of privacy or publicity or from any and all similar claims now known or hereafter devised; (b) a breach by you of a warranty under this Agreement; (c) any negligence or willful misconduct by you.
11. NO WARRANTIES.
11.1. DAVESWEBDESIGNING PROVIDES ALL MATERIALS AND THE SERVICES TO ALL OUR CLIENTS ON AN "AS IS" BASIS. DAVESWEBDESIGNING MAKES NO OTHER WARRANTIES AND DAVESWEBDESIGNING DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. DAVESWEBDESIGNING LLC. DOES NOT WARRANT THAT THE SERVICES OR SIGN-UP PAGE WILL BE INTERRUPTED OR ERROR FREE, NOR DOES DAVESWEBDESIGNING MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES OR THE SIGN-UP PAGE.
12. LIMITATION OF LIABILITY.
12.1. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO CONSTITUTE A WARRANTY, EXCLUSIVE OF SUCH SPECIFICALLY DESCRIBED HEREIN. DAVESWEBDESIGNING LLC'S MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, WILL BE LIMITED TO THE RECOVERY OF ACTUAL DAMAGES UP TO THE TOTAL AMOUNT OF $500. IN ADDITION, DAVESWEBDESIGNING SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DAVESWEBDESIGNING MAY SEEK INJUNCTIVE RELIEF TO PREVENT YOU FROM DISSEMINATING DAVESWEBDESIGNING'S CONFIDENTIAL INFORMATION OR FROM UNAUTHORIZED USE OF DAVESWEBDESIGNING'S TRADE NAME OR TRADEMARKS.
12.2. NOT INCLUDED IN THE SERVICES. Without limitation, the following are not included in the Services: We cannot and do not check to see whether the domain name(s) you select, or the use you make of the domain name(s), or other of our Service(s), infringes legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use infringes legal rights of others. We might be ordered by a court to cancel, modify, or transfer your domain name; it is your responsibility to list accurate contact information in association with your account and to communicate with litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other communications to you. We will comply with court orders unless you contact us to contest the order.
13. GENERAL TERMS AND CONDITIONS.
13.1. Notice, Governing Law, Force Majeure, Waiver, Entire Agreement. Any notice which either Party may desire to give the other Party must be in writing and delivered, by mail or facsimile to the relevant Party at the address of such Party as set forth in this Agreement or such other address as the Parties may hereinafter designate. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, except that body of law concerning conflicts of law. DavesWebdesigning shall not be liable to you for any delay or failure to perform which results from causes outside its reasonable control. A judicial determination that any provision of this Agreement is invalid in whole or in part shall not affect the enforceability of those provisions found to be valid. If DavesWebdesigning fails to require performance of any duty here under by you, such failure shall not affect its right to require performance of that or any other duty thereafter. The waiver by DavesWebdesigning of a breach of any provision of this Agreement shall not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein. This Agreement, including any supplements, modifications or amendments hereto, and the E-mail, including any supplements, modifications or amendments thereto, shall constitute the entire agreement between the Parties regarding its subject matter. This Agreement supersedes any and all previous proposals, representations or statements, oral or written. Except as otherwise stated in this Agreement, any modifications to this Agreement must be in writing and signed by authorized representatives of both Parties.
13.2. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective representatives, successors and permitted assignees. This Agreement shall not be reassigned by you, without the express written consent of DavesWebdesigning, including to an entity in which it has merged or which has otherwise succeeded to all or substantially all of your business and assets to which this Agreement pertains and which has assumed in writing or by operation of law its obligations under this Agreement. Any attempted assignment in violation of this provision will be void.
13.3. Attorneys Fees. In the event there is any dispute concerning the terms of this Agreement or the performance of any Party hereto pursuant to the terms of this Agreement, and any Party hereto retains counsel for the purpose of enforcing any of the provisions of this Agreement or asserting the terms of this Agreement in defense of any suit filed against said Party, the successful or prevailing Party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding from the other parties, in addition to any other relief to which it may be entitled. Our Legal department reserves the right to conduct changes to this agreement at any time without notice.
13.3.a. IF LAWSUIT(S) ARE THREATENED. If we are sued or threatened with lawsuit in connection with Service(s) provided to you, we may turn to you to indemnify us and to hold us harmless from the claims and expenses (including attorney's fees and court costs). Under such circumstances, you agree that you will, upon demand, obtain a performance bond with a reputable bonding company or, if you are unable to obtain a performance bond, that you will deposit money with us to pay for our reasonably anticipated expenses in relation to the matter for the coming year. Such deposit will be drawn down as expenses are incurred, with all account notices sent to the WHOIS contact information provided in association with your domain names and/or account. We shall not be obliged to extend you any credit in relation to such expenses and we may terminate the Services for a failure to make or renew such a deposit. We will return any unused deposit upon the later of one year from deposit or the conclusion of the matter.
13.4. Counterparts. This Agreement may be sent via facsimile and executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14. Service Agreement Modifications
14.1. DavesWebdesigning may modify this Agreement from time to time, with or without notice, and your continued participation in use of our service after such modification shall be deemed to be your acceptance of any such modification. It is your responsibility to check this Terms and Conditions page regularly to determine whether this Agreement has been modified. If you do not agree to any modification of this Agreement, you must correct your actions or immediately cease participation of DavesWebdesigning, LLC or its Partners services.
15. New Policy for Domain Name Transfer Between Registrars
15.1. For each instance where a Registered Name holder wants to change its Registrar for an existing domain name (i.e., a domain name that appears in a particular top-level domain zone file), DavesWebdesigning, LLC require:
- Express authorization to initiate the transfer process from an individual who has the apparent authority to legally bind the Registered Name holder (as reflected in the database of losing Registrar).
- In instances when the Registrar of record is being changed simultaneously with a transfer of a domain name from one party to another, DavesWebdesigning, LLC also requires submission of appropriate authorization for the transfer. Such authorization shall include, but not be limited to, one of the following:
- A bilateral agreement between the parties.
- The final determination of a binding dispute resolution body.
- A court order.
- Instances when the requested change of sponsoring Registrar may be denied include, but are not limited to:
- Situations described in the Domain Name Dispute Resolution Policy.
- A pending bankruptcy of the Registered Name holder.
- Dispute over the identity of the Registered Name holder.
- Request to transfer sponsorship occurs within the first 60 days after the initial registration with the Registrar.
16 Final User Agreement
16.1. I understand and agree to all the Terms of this Service Agreement and that DavesWebdesigning shall be the sole determiner in cases of suspected abuse, fraud, or violation of its rules and any decision it makes relating to termination of membership (including cancellation of commissions and with holding of funds) shall be final and binding.
Terms subject to change at any time. All currency is in US Dollars only Last Updated: 11 Apr. 2007
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