Host Orlando Terms of Service
between Host Orlando (“we” or “Host Orlando“) and the customer who orders Host Orlando services (“you” or “Customer“).
Your use of Host Orlando services is governed by these Terms of Service, the Host Orlando Acceptable Use Policy, and the terms of your Order. The individual who submits and order:
- Affirms he or she is 18 years of age or older
- If the individual who submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement
This Agreement is the complete and exclusive agreement between you and Host Orlando regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
Some words used in the Agreement have particular meanings:
Acceptable Use Policy” or “AUP” means the Host Orlando Acceptable Use Policy posted at http://hostorlando.com/acceptable-use-policy/
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States eastern time, excluding federal public holidays in the United States.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, the Host Orlando system, (ii) for Host Orlando, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Junk Mail” means email that is captured by our mail filter and other email that is reported by you to Host Orlando as undesirable.
“Order” means either: (i) the online order that you submit to Host Orlando via the Host Orlando website, or (ii) any other written order (either in electronic or paper form) provided to you by Host Orlando for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“Services” means those services described in the Order.
You agree to do each of the following: (i) comply with applicable law and the Host Orlando Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Host Orlando’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify Host Orlando of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Host Orlando’s reasonable determination shall control.
Access to the Services
You may access the Services via the online control panels provided to you by Host Orlando.
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Host Orlando’s non-renewal process accessible from your control panel to give an effective notice of non-renewal.
Host Orlando will charge you the fees stated in your Order. Unless you have made other arrangements, Host Orlando will charge your credit card as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for overages and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Host Orlando first makes the Services available to you. Host Orlando may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Host Orlando may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Host Orlando brings a legal action to collect, or engages a collection agency, you must also pay Host Orlando’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services at our option, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Host Orlando with accurate factual information to help Host Orlando determine if any tax is due with respect to the provision of the Services, and if Host Orlando is required by law to collect taxes on the provision of the Services, you must pay Host Orlando the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
Payments are to be made using US currency only. Payments are only accepted from Clients residing in the United States or Canada. Mastercard, Visa, American Express, Discover Card and check payments (with prior authorization from HO) are currently accepted.
Unless otherwise specified by a service-specific contract, balances for products or services rendered are due upon receipt of invoice. Payments are non refundable.
Billing Notices and Announcements
All billing notices and announcements from Host Orlando to the you will be provided via email to the primary contact email address on file for the account. It is the Customer’s responsibility to ensure their email address is valid, active and current. All billing messages will be sent from the address email@example.com. Clients using spam filtering software should add this address to their system to allow billing notices to be received. Host Orlando may, at it’s sole discretion, use alternate contact methods to contact the Customer regarding billing notices.
We may increase fees at any time with fifteen (15) days advance written notice (email notice to account admin sufficient).
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Host Orlando or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $100) upon reinstatement of the Services.
Termination for Convenience
You may terminate the Agreement for convenience at any time. You must cancel Service by using your Account Control Panel. Only cancellation requests submitted through this method will guarantee immediate acceptance by Host Orlando and begin the termination process. Cancellation requests are not accepted by email, phone or mail.
You are purchasing Subscription Services for the full term. If you terminate a Subscription Service prior to the renewal date, you will be responsible for the full charges through the end of the renewal date. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
Termination for Breach
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (30) days of our written notice, (iv) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (v) you violate the AUP more than once, even if you cure each violation, or (vi) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
Access to Data
You will not have access to your data stored on the Host Orlando system during a suspension or following termination.
We backup Host Orlando systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of Host Orlando systems.
Although the Host Orlando service may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Host Orlando system somewhere other than on the Host Orlando system.
Unauthorized Access to Your Data or Use of the Services
Host Orlando is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Host Orlando’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Host Orlando has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Host Orlando is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
- o law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
Limitation on Damages
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Host Orlando’s negligence, the maximum aggregate monetary liability of Host Orlando and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Host Orlando Indemnitees“) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Host Orlando Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
Changes to the Acceptable Use Policy
We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Host Orlando in connection with Services, including pointing the DNS for your domain name(s) away from Host Orlando Services.
Assigment / Subcontractors
You may not assign the Agreement without Host Orlando prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Host Orlando may use third party service providers to perform all or any part of the Services, but Host Orlando remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Host Orlando performed the Services itself.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Governing Law / Lawsuits
The Agreement is governed by the laws of the State of Florida. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Orange County, Florida, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Host Orlando or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
Domain Name Registration Services
If you register, renew or transfer a domain to Host Orlando, the Registrar for this domain will be Tucows, Inc. Host Orlando is an authorized reseller of Tucows and we will provide all customer service, billing, and management for domains names registered through or transferred to Host Orlando. By registering or transferring a domain to Host Orlando, you agree to be bound by the following agreements in addition to this and any other applicable agreements from Host Orlando:
Payments for domain name registrations, renewals and transfers are non refundable for any reason.
You may access your Mail Services over the web via our control panel, or via a Host Orlando-provided API. Rackspace may modify its control panel or APIs at any time, or may transition to new APIs.
Host Orlando will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
Host Orlando will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Host Orlando recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Guaranty above. Host Orlando will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Host Orlando and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Host Orlando’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost. As of November 2008, the per-message size limit is 50MB.
Your email messages and other items sent or received via the mail service will include: (i) the content of the communication (“content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.