|
|
 |
 |
| |
Last Updated: 4/20/2005
By submitting the online order form, or by using Durubata Hosting's service,
Customer hereby agrees to Durubata Hosting's Terms of Service (TOS), Acceptable
Use Policy (AUP), No Spam Policy (NSP), and Privacy Policy.
Unless otherwise specified, in this TOS, the AUP, the NSP, and the Privacy
Policy, the usage of "us", "we", "our", and "ours" shall refer to Durubata Hosting, a Texas corporation, and all its parents, subsidiaries,
successors, and assigns. The usage of "you", "your", "they", and "them" shall
refer to the Customer of Durubata Hosting.
Moreover, in this TOS, the AUP, the NSP, and the Privacy Policy, "Durubata
Hosting" shall refer to Durubata Hosting, a Texas corporation, and all
its parents, subsidiaries, successors, and assigns; unless otherwise specified,
"Durubata Hosting" and "Durubata Hosting." shall have the same meaning and
shall be interchangeable.
Customer agrees that it shall comply with this TOS, Durubata Hosting's
Acceptable Use Policy (AUP), and Durubata Hosting's No-Spam Policy (NSP).
Customer further agrees that it has read Durubata Hosting's Privacy Policy and
agrees to all the terms and conditions in the Privacy Policy. In this document,
the word "Agreement," with a capital "A," refers to the TOS, the AUP, the NSP,
and the Privacy Policy collectively. |
| |
|
|
| 1. General Terms. |
| |
|
|
| |
In consideration of hosting services to be delivered,
Customer agrees to be bound by the following terms and conditions: |
| |
|
|
| |
1.1. |
Customer agrees to pay, in advance of each monthly service term,
for hosting services to be rendered. |
| |
|
|
| |
1.2. |
Customer agrees to be bound by the service term selected on the
online order form or via applicable promotional codes that may require Customer
to order Durubata Hosting's service for a certain minimum period of time. |
| |
|
|
| |
1.3. |
Customer agrees to a no-refund policy in advance. Setup fees and
monthly web hosting service fees are non-refundable. |
| |
|
|
| |
1.4. |
Non-Payment of services shall result in a 5-day notice of
disconnection. All payment failures must be cured within 5 business days or
account will be terminated. |
| |
|
|
| |
1.5. |
Durubata Hosting is not and shall not responsible for data
integrity for any accounts that are terminated, disconnected, or interrupted
because of Customer's failure to pay for Durubata Hosting's services. |
| |
|
|
| |
1.6. |
Customers agree to pay all taxes applicable to your account. |
| |
|
|
| 2. Agreement for Services. |
| |
|
|
| |
2.1. |
Durubata Hosting will provide, and Customer will purchase and pay
for, the Web hosting services (the "Services"), according to the service fees
specified in the Order for the applicable Service Description. Customer
acknowledges that the service, and service fees have been communicated to the
Customer, and that Customer is aware of all applicable charges as per the
Agreement. Customer also understands that no promotional offers will apply to
their individual service unless said promotional offers are specified in this
Agreement. |
| |
|
|
| 3. Payment. |
| |
|
|
| |
3.1. |
Establishment and provision of service is contingent upon receipt
of payment from Customer to Durubata Hosting. |
| |
|
|
| |
|
3.1.1. |
Customer must pay in full for the Services before Durubata Hosting begins to
provide the Services to Customer. |
| |
|
|
|
| |
|
3.1.2. |
Setup fees will be charged and are due at the time of the
Customer's initial request of the Services requiring setup. |
| |
|
|
| |
3.2. |
Payment is due on the defined monthly recurring billing date of
each month. All returned checks will be charged a $20.00 service fee. Service
will be interrupted on accounts that reach 5 days past due. Accounts that are
not collectable by Durubata Hosting will be turned over to an outside agency
for collection. If your account is turned over for collection, you agree to pay
to Durubata Hosting a "Processing and Collection" Fee of not less than Fifty
($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars. |
| |
|
|
| 4. Delinquent Accounts. |
| |
| |
Durubata Hosting may temporarily deny service or
terminate this Agreement upon failure of Customer to pay charges when due. Such
termination or denial will not relieve Customer of responsibility for the
payment of all accrued service fees, and any collection fees to which Durubata
Hosting may be entitled under this Agreement or under applicable law. |
| |
|
|
| 5. Account Cancellation. |
|
| |
Customers may voluntarily cancel their account at any time, for any reason or
for no reason, by filling out the "Cancellation Request Form" which is provided
on the Durubata Hosting Web site. You can find the "Cancellation Request Form"
at the following Web page:
http://www.durubatahosting.com/forms/cancellation.aspx
Once a Customer has cancelled their account before the renewal date, no more
charges will be billed to the account. Cancellations on or after renewal will
be charged renewal fees.
Customer can terminate their account for any reason or for no reason. However,
Customer understands and agrees that Durubata Hosting does not provide
pro-rated or any other kinds of refunds on cancellations. All fees Customer has
paid shall be nonrefundable. |
| |
|
|
| 6. Refunds and Disputes. |
|
| |
IMPORTANT NOTICE: EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 6, ALL
PAYMENTS TO Durubata Hosting ARE NONREFUNDABLE.
All payments to Durubata Hosting are nonrefundable. This includes any setup
fees and monthly fees regardless of usage. All billing disputes must be
reported within thirty (30) days of the time the dispute occurred. Disputed
charges to your credit card issuer, also known as chargebacks, which, in
Durubata Hosting's sole discretion, are invalid under the terms and conditions
of this Agreement, will result in service interruption, and reconnection fees
to restore the desired service.
Without waiving any of its other rights under this Agreement, Durubata Hosting
offers to its Customers a 30-day money-back guarantee on fees for hosting
services only (the "30-Day Guarantee"). If for any reason you
cancel your account by filling in the account cancellation form and submitting
it to Durubata Hosting, within thirty (30) days of the beginning of your
service, Durubata Hosting will refund your money with no questions asked;
provided, however, that you have never previously obtained a refund under the
30-Day Guarantee. If you have ever previously obtained a refund under the
30-Day Guarantee, your account will be canceled, but no money will be refunded
to you.
Please note that the amount refunded to you will be the amount you paid for
hosting services only, and will not include any of the following fees:
- Setup fees,
- Fees for domain name registrations,
- Fees charged for exceeding your allotted disk storage space or bandwidth,
- SSL certificate fees,
- Web design fees,
- Web site marketing fees,
- Any add-on services, features, software, and
- Any other fees for services involving a third party.
The 30-Day
Guarantee is subject to all of the following
limitations:
- You are entitled to a maximum of one (1) 30-Day Guarantee.
- If you do not cancel your account within thirty (30) days of the beginning of
your service, your right to the 30-Day Guarantee shall expire forever and may
not be revived under any circumstances, without the prior express written
approval of Durubata Hosting.
- You may not transfer or assign the 30-Day Guarantee to any third party.
- You agree that you will not circumvent the restrictions on the 30-Day Guarantee
described in this document, or attempt to circumvent those restrictions by any
meansluding, but not limited to, the following actions:
- Creating multiple accounts, using the same customer name or different customer
names;
- Canceling your account for the sole purpose of obtaining a refund and then
registering for a new account;
- Organizing multiple business entities or using assumed business names for the
purpose of circumventing these restrictions;
- Knowingly providing false or misleading information when you register for your
account; or
- Requesting a refund under the 30-Day Guarantee at any time after you have
already received a refund under that guarantee.
- If you violate any provision of any of the following policies of Durubata
Hosting, you will not be eligible for the 30-Day Guarantee:
- Terms of Service (TOS);
- Acceptable Use Policy (AUP); or
- No-Spam Policy (NSP).
Changes to your serviceluding, but not limited to, adding new services,
removing services, or changing the type of hosting plan you have do NOT make
you eligible for an additional 30-Day Guarantee. The 30-Day Guarantee applies
to your first order of Web hosting services from Durubata Hosting and does not
apply to any changes to your service at any time. |
| |
|
|
| 7. |
Customer agrees not to engage in any activity that
violates any international, foreign, federal, state, or local laws applicable
to the service terms described in this Agreement. |
| |
|
|
| 8. |
Durubata Hosting reserves the right to discontinue
service to any Customer it deems, in its sole discretion, violates any
condition of service including, but not limited to, the following: |
| |
|
|
| |
8.1. |
the Acceptable Use Policy, or |
| |
|
|
| |
8.2. |
the No-Spam Policy. |
| |
| 9. |
Customer agrees to defend, indemnify, and hold
harmless Durubata Hosting, and the parents, subsidiaries, successors, assigns,
employees and agents of Durubata Hosting 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 Customer's use of the Services,
and to reimburse an indemnified party for all legal and other expensesluding 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. |
| |
|
|
| 10. Durubata Hosting SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES
FOR |
| |
|
|
| |
10.1. |
ANY INDIRECTIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE,
LOSS OF USE, OR LOSS OF DATA RESULTING FROM THE USE OF Durubata Hosting'S
SERVICES BY CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION OR
THEORY OF LIABILITY, OR |
| |
|
|
| |
10.2. |
ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES,
MISDELIVERIES OR SERVICE INTERRUPTIONS. |
| |
|
|
| 11. |
Durubata Hosting PROVIDES THE SERVICES AND PRODUCTS AS
IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. Durubata Hosting
DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS, AND
DISCLAIMS ALL IMPLIED WARRANTIESLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER
SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE
SERVICES AND Durubata Hosting SHALL HAVE NO LIABILITY THEREFOR. |
| |
|
|
| 12. |
TO THE MAXIMUM EXTENT PERMITTED BY LAW, Durubata
Hosting DISCLAIMS, ALL WARRANTIES, REPRESENTATIONS OR OTHER ENDORSEMENTS,
EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR THROUGH,
THIS SERVICE, THE SYSTEMS WHICH PROVIDE IT, AND THE INTERNETLUDING ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR
NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS. |
| |
|
|
| 13. |
Durubata Hosting DOES NOT ASSUME ANY LIABILITY FOR THE
COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY INFORMATION DISCLOSED OR MATERIALS
ACCESSED THROUGH ITS SERVICES, ITS SYSTEMS, ITS NETWORKS, OR THE INTERNET. |
| |
|
|
| 14.No Waiver of Rights by Durubata Hosting. |
| |
|
|
| |
Any failure by Durubata Hosting to enforce this
Agreement in every instance in which it might apply does not amount to a waiver
of any of Durubata Hosting's rights. |
| |
|
|
| 15. Arbitration. |
| |
|
|
| |
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS CONTACT OR ANY BREACH THEREOF IN EXCESS OF $250.00 SHALL BE SETTLED BY
ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. |
| |
|
|
| 16. Notices. |
| |
|
|
| |
16.1. |
From Durubata Hosting to Customer. |
| |
|
|
| |
Durubata Hosting will notify you by e-mail of any
notices that Durubata Hosting is required to provide to you under this
Agreement, at the most current e-mail address you have provided to Durubata
Hosting.
By entering this Agreement, you consent to receive notices by e-mail. You are
solely responsible for ensuring that Durubata Hosting has your most current
e-mail address, and Durubata Hosting shall not be responsible for any lost,
misdirected, bounced, forwarded, or undeliverable e-mail that Durubata Hosting
sends to the most current e-mail address you have provided to Durubata Hosting. |
| |
|
|
| |
16.2. |
From Customer to Durubata Hosting. |
| |
|
|
| |
|
Unless otherwise specified in this Agreement, notices to Durubata Hosting shall
be sent to the following address:
Durubata Hosting
Attention: Legal Notices
11205 Bellaire Blvd., Suite B-27
Houston, TX 77072 |
| |
|
|
| 17. Governing Law. |
| |
|
|
| |
This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to choice of law
or conflicts of law provisions that would cause the application of the law of
another jurisdiction. |
| |
|
|
| 18. Currency. |
| |
|
|
| |
All monetary amounts to which this Agreement refers
shall be in United States dollars. |
| |
|
|
| 19. Entire Agreement. |
| |
|
|
| |
This Agreementluding all of its component parts,
comprises the entire agreement between you (the Customer) and Durubata Hosting,
and supersedes any prior or previous agreements between you and Durubata
Hosting with respect to the subject matter of this Agreement; provided,
however, that you agree that you shall be subject to any additional terms and
conditions of which Durubata Hosting notifies you from time to time, pursuant
to this Agreement. |
| |
|
|
| 20. No Oral Modification of this Agreement. |
| |
|
|
| |
This Agreement may not be modified orally. |
| |
|
|
| 21. Assignment. |
| |
|
|
| |
21.1 |
Customer shall not assign or attempt to assign its obligations
under this Agreement without Durubata Hosting's prior and express written
consent to such assignment. |
| |
|
|
| |
21.2. |
Durubata Hosting may assign any or all of its rights and
obligations under this Agreement at any time without prior notice to or consent
of Customer. |
| |
|
|
| 22. Consent to Jurisdiction; Venue. |
| |
|
|
| |
Jurisdiction and venue for arbitration or litigation
of any dispute, controversy, or claim arising out of, in connection with, or in
relation to this Agreement, or the breach thereof shall be proper only in a
venue determined Durubata Hosting. |
| |
|
|
| 23. Choice of Law. |
| |
|
|
| |
For all purposes, this Agreement shall be deemed to
have been made within the State of Texas, United States of America. This
Agreement shall be governed by the laws of the United States of America and the
laws of the State of Texas, without regard to Texas' choice of law and
conflicts of law rules, and Durubata Hosting and Customer each submit to the
exclusive jurisdiction of the courts of Harris County, Texas, or to the United
States District Court for the Southern District of Texas, should any claim or
question arise under Federal law or federal jurisdiction based upon diversity
of citizenship. |
| |
|
|
| 24. Force Majeure. |
| |
|
|
| |
Durubata Hosting shall not be liable or deemed to be
in default for any delay or failure in performance under this Agreement or
interruption of service resulting directly or indirectly from acts of God,
civil or military authority, acts of public enemy, war, terrorism, riots, civil
disturbances, insurrections, accidents, fire, explosions, earthquakes, floods,
the elements, strikes, labor disputes, shortages of suitable parts, materials,
labor or transportation, magnetic interference, interruptions of electrical
power or other utility service, unavailability of any telecommunications or
wireless service or connection to any telecommunications or wireless service,
or any cause beyond the reasonable control of Durubata Hosting. |
| |
|
|
| 25. Severability of Terms of this Agreement. |
| |
|
|
| |
In the event that any portion of this Agreement is
held to be unenforceable, the unenforceable portion shall be construed in
accordance with applicable law as nearly as possible to reflect the original
intentions of the parties hereto, and the remainder of the provisions shall
remain in full force and effect. |
| |
|
|
| 26. Limitation of Actions Arising Under this
Agreement. |
| |
|
|
| |
Any cause of action you may have with respect to
Durubata Hosting's performance or alleged non-performance of this Agreement
must be commenced within one (1) year after the claim or cause of action arises
or such claim or cause of action is forever barred. |
| |
|
|
|
|