Terms of Service
Where the content states: "We" includes GemWebHost or any party acting
on GemWebHost's implicit instructions. "You" includes the person
purchasing the services or any party acting on the customer's
instructions. "Member" includes the purchaser of services or any party
acting on the purchaser's instructions. "The Registrant" includes the
person applying for a domain name or any party acting on the
Registrant's instructions. "The Registry" refers to the relevant domain
names Registry. "Server" means the computer server equipment in
connection with the provision of the Services. "Web Site" means the
area on the Server allocated by us to you for use by you as a site on
the Internet. "TOS" includes this agreement. GemWebHost reserves the
right to modify this policy at any time, effective immediately upon
posting of the modification to this URL:
http://www.gemwebhost.com/tos.shtml. In consideration of the mutual
covenants herein, the parties agree to the following, which shall apply
during the term of this agreement:
1. Domain Name Registration
1.1 We make no representation that
the domain name you wish to register is capable of being registered by
or for you or that it will be registered in your name. You should
therefore not assume registration of your requested domain name(s)
until you have been notified that it has or they have been registered.
Any action taken by you before such notification is at your risk.
1.2 The registration and use of your domain name is subject to the
terms and conditions of use applied by the relevant naming authority;
you shall ensure that you are aware of those terms and conditions and
that you comply with them. You shall have no right to bring any claim
against us in respect of refusal to register a domain name. Any
administration charge paid by you to us shall be non-refundable
notwithstanding refusal by the naming authority to register your
desired name.
1.3 We shall have no liability in respect of the use by you of any
domain name; any dispute between you and any other person must be
resolved between the parties concerned in such dispute. If any such
dispute arises, we shall be entitled, at our discretion and without
giving any reason, to withhold, suspend or cancel the domain name. We
shall also be entitled to make representations to the relevant naming
authority but will not be obliged to take part in any such dispute.
1.4 We shall not release any domain to another provider unless full
payment for that domain has been received by us.
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2. Web Site Hosting And Email
2.1 We make no representation and give no warranty as to the accuracy
or quality of information received by any person via the Server and we
shall have no liability for any loss or damage to any data stored on
the Server.
2.2 You shall effect and maintain adequate insurance coverage in
respect of any loss or damage to data stored on the Server.
2.3 You represent, undertake and warrant to us that you will use the
Web Site allocated to you only for lawful purposes. In particular, you
represent, warrant and undertake to us that:
2.3.1 you will not use the Server in any manner which infringes any law
or regulation or which infringes the rights of any third part; nor will
you authorize or permit any other person to do so.
2.3.2 you will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious,
defamatory, obscene, pornographic, blasphemous, profane or otherwise
objectionable as determined by GemWebHost in any way.
(b) any material containing a virus or other hostile computer program.
(c) any material which constitutes, or encourages the commission of a
criminal offence, or which infringes any patent, trade mark, design
right, copyright or any other intellectual property right or similar
rights of any person which may subsist under the laws of any
jurisdiction.
2.3.3 you will not send bulk email, whether opt-in or otherwise, from
our network. Nor will you promote a site hosted on our network using
bulk email.
2.3.4 you will not employ programs which consume excessive system
resources including, but not limited to, processor cycles and memory.
We do not host IRC, IRC bots, or other server resource intensive
programs.
2.3.5 If you surpass your allotted disk/bandwidth usage as set forth in
your purchased plan, you agree to purchase the excess in blocks as set
forth in our "plans" section. Such payment to be immediate and
non-disputable.
2.4 We reserve the right to remove any material which we deem
inappropriate from your web site without notice. We do not host Warez,
Underage Adult, Pornographic, or Copyrighted MP3 content.
2.5 You shall keep secure any identification, password and other
confidential information relating to your account and shall notify us
immediately of any known or suspected unauthorized use of your account
or breach of security, including loss, theft, or unauthorized
disclosure of your password or other security information.
2.6 You shall observe the procedures which we may from time to time
prescribe and shall make no use of the Server which is detrimental to
our other customers.
2.7 Members utilizing free hosting shall exclude themselves from
promotions offered and afforded to paying Members.
2.7.1 Members utilizing free hosting shall display a banner as supplied
by GemWebHost.
2.8 You shall procure that all mail is sent in accordance with
applicable legislation (including data protection legislation) and in a
secure manner.
2.8.1 Sending unsolicited mail messages, including, without limitation,
commercial advertising and informational announcements, is expressly
prohibited. A Member shall not use another site's mail server to relay
mail without the express permission of the site.
2.8.2 It is contrary to GemWebHost policy for Members to use our
servers to effect or participate in any of the following activities:
To post to any Usenet or other newsgroup, forum, e-mail mailing list or
other similar group or list articles which are off-topic according to
the charter or other owner-published FAQ or description of the group or
list.
To send mass e-mailings; whether unsolicited, opt-in, or otherwise.
To engage in any of the foregoing activities using the service of
another provider, but channeling such activities through a GemWebHost
provided server, or using a GemWebHost provided server as a mail drop
for responses.
To falsify user information provided to GemWebHost or to other users of
the service in connection with use of a GemWebHost service.
2.8.2(a) Consequences of Violation:
When GemWebHost becomes aware of an alleged violation of its Acceptable
Use Policy, GemWebHost will initiate an investigation. During the
investigation GemWebHost may restrict Member's access in order to
prevent further possible unauthorized activity. Depending on the
severity of the violation, GemWebHost may, at its sole discretion,
restrict, suspend, or terminate Member's account and/or pursue other
civil remedies. If such violation is a criminal offense, GemWebHost
will notify the appropriate law enforcement department of such
violation.
2.8.2(b) You shall be held liable for any and all costs incurred by
GemWebHost as a result of your violation of these terms and conditions.
This is including, but is not limited to, attorney fees and costs
resulting from Postmaster responses to complaints from and the cleanup
of unsolicited commercial mailings and/or unauthorized bulk mailings
and/or news server violations. GemWebHost’s current hourly rate for
Postmaster responses to complaints and cleanup of unsolicited
commercial mailings and/or unauthorized bulk mailings and/or news
server violations is US $100 per hour, with a minimum one (1) hour
charge, plus US $1 for each bulk-email or Usenet message sent, plus US
$1 per complaint received. Server maintenance fees of $85 per hour.
2.8.3 GemWebHost does not issue service credits for any outages
incurred through service disablement resulting from Policy violations.
2.9 Any access to other networks connected to GemWebHost must comply
with the rules appropriate for those other networks
2.10 While we will use every reasonable endeavor to ensure the
integrity and security of the Server, we do not guarantee that the
Server will be free from unauthorized users or hackers and we shall be
under no liability for non-receipt or misrouting of email or for any
other failure of email.
2.11 You may cancel the Services at any time by logging into the Ticket
Desk Support System (for verification) and requesting cancellation of
services.
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3. Service Availability
3.1 We shall use our reasonable endeavors to make available to you at
all times the Server and the Services but we shall not, in any event,
be liable for interruptions of Service or down-time of the Server.
3.2 We shall have the right to suspend the Services at any time and for
any reason, generally without notice, but if such suspension lasts or
is expected to last for more than 7 days you will be notified of the
reason. As a reseller or sub-client, it is your responsibility to take
care of backup for sites that may be yours or ones under you. We also
reserve the right to disallow services/hosting to any client as we feel
necessary and hold no liability. Also please note that we do not offer
any sort of compensation on our network uptime guarantee.
3.3 The Services provided to you hereunder and your account with us
cannot be transferred or used by anyone other than you. No more than
one log-in session under any one account may be used at any time by
you. If you have multiple accounts, you are limited to one login
session per system account at any time; user programs may be run only
during log-in sessions. If your account is found to have been
transferred to another party, or shows other activity in breach of this
sub clause, we shall have the right to cancel the account and terminate
the Services and/or this Agreement immediately.
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4. Payment
4.1 All charges payable by you for the Services shall be in accordance
with the scale of charges and rates published from time to time by us
on our web site and shall be due and payable in advance of our service
provision. We reserve the right to change pricing at any time although
all pricing is guaranteed for the period of pre payment.
4.2 Payment is due each anniversary month, quarter or year following
the date the Services were established until closure notice is given.
If you choose to pay by credit or debit card you authorize GemWebHost
to debit your account renewal fees from your card.
4.3 All payments must be in US Dollars.
4.4 If your check is returned by the bank as unpaid for any reason, you
will be liable for a "returned check" charge of $45.
4.5 Without prejudice to our other rights and remedies under this
Agreement, if any sum payable is not paid on or before the due date, we
shall be entitled forthwith to suspend the provision of Services to you.
5. Termination
5.1 If you fail to pay any sums due to us as they fall due, we may
suspend the Services and/or terminate this Agreement forthwith without
notice to you.
5.2 If you break any of these terms and conditions we may suspend the
Services and/or terminate this Agreement forthwith without notice to
you.
5.3 If you are a company and you go into insolvent liquidation or
suffer the appointment of an administrator or administrative receiver
or enter into a voluntary arrangement with your creditors, we shall be
entitled to suspend the Services and/or terminate this Agreement
forthwith without notice to you.
5.4 No refunds will be made for Services suspended in accordance with
5.1, 5.2 and 5.3.
5.5 We reserve the right to suspend the Services and/or terminate this
Agreement at any time. In the event of this You will a be entitled pro
rata refund based upon the remaining period of membership.
5.6 You may cancel the Services at any time by logging into the Ticket
Desk Support System (for verification) and requesting cancellation of
services.
5.7 During the first 30 days of Services, You are entitled to a refund
of fees paid with the exclusion of domain name registration, dedicated
server, data transfer fees, and excessive support requests should you
decide to cancel the Services for just cause. GemWebHost shall be the
sole arbitrator as to the validity of your claim of just cause. And
will subtract the aforementioned fees from any monies due you.
5.7.1 During the first fourteen days of service you are entitled to a
full, no questions asked refund excluding as set forth in sections 5.7,
5.7.2, 5.7.3, and 12.5; as well as exclusions listed in section 2
above. For the remaining time your refund will be prorated and factored
at the full discretion of GemWebHost.
5.7.2 Partner Plans (Resellers) are eligible for above refund minus
usage fees; if such use has been deemed excessive at the discretion of
GemWebHost. Such accounts are often more resource intensive than
standard shared hosting accounts and, therefore, do not qualify under
our standard 30 day guarantee details.
5.7.3 You will not be entitled to a refund on these basis if you have
previously had an account with GemWebHost under any plan or service.
5.7.4 Allow 30 (thirty) days for refund payments to process. If you
have not received refund within this time allotment; please contact us.
5.8 Where payment has been made by credit or debit card, any refund
will only be issued to the same credit or debit card.
5.9 On termination of this Agreement or suspension of the Services we
shall be entitled immediately to block your Web Site and to remove all
data located on it.
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6. Indemnity
6.1 You shall indemnify us and keep us indemnified and hold us harmless
from and against any breach by you of these terms of business and any
claim brought against us by a third party resulting from the provision
of Services by us to you and your use of the Services and the Server
including, without limitation, all claims, actions, proceedings,
losses, liabilities, damages, costs, expenses (including reasonable
legal costs and expenses), howsoever suffered or incurred by us in
consequences of your breach or non-observance of this Agreement.
7. Limitation Of Liability
7.1 All conditions, terms, representations and warranties relating to
the Services supplied under this Agreement, whether imposed by statute
or operation of law or otherwise, that are not expressly stated in
these terms and conditions including, without limitation, the implied
warranty of satisfactory quality and fitness for a particular purpose
are hereby excluded, subject always to sub clause.
7.2 Nothing in these terms and conditions shall exclude our liability
for death or personal injury resulting from our negligence.
7.3 Our total aggregate liability to you for any claim in contract,
tort, negligence or otherwise arising out of or in connection with the
provision of the Services shall be limited to the charges paid by you
in respect of the Services which are the subject of any such claim.
7.4 In any event no claim shall be brought unless you have notified us
of the claim within one year of it arising.
7.5 In no event shall we be liable to you for any loss of business,
contracts, profits or anticipated savings or for any other indirect or
consequential or economic loss whatsoever.
7.6 You are responsible for monitoring Bandwidth and Disk space usage
of your site. This is easily done from your Control Panel. If you go
over the amount indicated in your current plan; you will assessed a
surcharge as set forth in our pricing structure.
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8. Notices
8.1 Any notice to be given by either party to the other may be sent by
either email, fax or recorded delivery to the address of the other
party as appearing in this Agreement or ancillary application forms or
such other address as such party may from time to time have
communicated to the other in writing, and if sent by email shall unless
the contrary is proved be deemed to be received on the day it was sent
or if sent by fax shall be deemed to be served on receipt of an error
free transmission report, or if sent by recorded delivery shall be
deemed to be served two days following the date of posting.
9. Support
9.1 On our site you will find links
to all the information to get your web site up and running. All
information pertaining to your account should have been included in the
Welcome Letter you received when we created your account. If you did
not receive a welcome letter email, please contact our Support Team.
There are several reasons an email may not reach you; first and
foremost is if the domain you have contracted services for is the same
domain your welcome email was sent to.
9.2 The support feature of our service at present time consists of our
Support System solving server related problems only.
9.2.1 If you require support for your scripting, there are several
online tutorials available we can help you find. You may purchase our
technicians' services at the rate of $80 per hour, with one half hour
minimum billed. We reserve the right to wave this fee at any time.
9.3 Support can only be addressed in English through our Support System.
9.4 All Support requests are to be processed through our Support
System. Any other request for support, except as noted in Section 9.5,
will be considered a breach of our TOS.
9.5 In the event of a server outage or other such emergency, you are
free to contact us in any manner.
10. Law
10.1 This Agreement shall be governed by and construed in accordance
with United States law and the laws governing the state of Michigan.
You hereby submit to the non-exclusive jurisdiction of the U.S. courts.
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11. Headings
11.1 Headings are included in this Agreement for convenience only and
shall not affect the construction or interpretation of this Agreement.
12. Torturous Conduct
12.1 No one shall post defamatory, scandalous, or private information
about a person without their consent, intentionally inflicting
emotional distress, or violating trademarks, copyrights, or other
intellectual property rights.
12.2 Any abuse towards any GemWebHost employee will not be tolerated.
You are expected to request and respond to support and other issues in
a professional manner. When emailing GemWebHost or utilizing the Ticket
Desk Support System, refrain from using caps, exclamation points, and
other forms of written yelling. Any cursing, yelling, or further
intentional disruptive behavior aimed at GemWebHost or it's employees
shall be considered a violation of this TOS.
12.3 Any threat; whether verbally, orally, written, or delivered by
second parties directed towards GemWebHost or any of it's employees,
partners, equipment, and concerns shall be construed as a violation of
this TOS.
12.4 Any conduct viewed as violating this section shall be considered a
violation of this TOS. GemWebHost will be the sole arbitrator in
regards to what is deemed a violation.
12.5 No refunds shall be given when the contents of this section
necessitates removal of the account.
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13. Cancellation of Services
13.1 You may cancel the Services at any time by logging into the Ticket
Desk Support System (for verification) and requesting cancellation of
services.
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14. Entire Agreement
14.1 These terms and conditions together with any documents expressly
referred to in them, contain the entire Agreement between us relating
to the subject matter covered and supersede any previous Agreements,
arrangements, undertakings or proposals, written or oral: between us in
relation to such matters. No oral explanation or oral information given
by any party shall alter the interpretation of these terms and
conditions. In agreeing to these terms and conditions, you have not
relied on any representation other than those expressly stated in these
terms and conditions and you agree that you shall have no remedy in
respect of any misrepresentation which has not been made expressly in
this Agreement.
14.2 GemWebHost reserves the right to amend these TOS at any time.
14.3 It is your responsibility to check these Terms of Service on
occasion for any such amendments.
15. Freedom to use these Terms
15 You (anyone viewing this page) are free to use these terms as a
template for writing your own. Please have it reviewed by a local
attorney to make certain it conforms with your applicable laws. You
will also wish to confirm that the terms you create using this form as
a template conform to your upstream provider.
15.1 GemWebHost releases rights to this document text to the reader,
free of encumbrance. Except as noted in this section (15.3).
15.2 In no form can you hold GemWebHost responsible for any and all
actions arising out of your use of these terms as your own.
15.3 If you choose to use these terms as your own, this section (15)
must remain intact of content; save for our name. You agree to let
others use these terms as a guide.
15.4 Our release of this text material in no way assigns rights of any
images viewed herein.
