Acceptable Use Policy
The Linux Fix's Acceptable Use Policy is based on common sense, legal use of services, respect for others, and non-interference. The Linux Fix reserves the right to update this policy, and retroactively be in effect, at any time. Customers of The Linux Fix must agree and adhere to the following provisions of acceptable use. (the "Policy")
1. Restricted ContentThe Linux Fix will not construct, nor abet in the construction of, nor host, any site whose nature is exploitation of minorities or children, hate, violence, any illegal activity or discrimination of any kind. Other examples of unacceptable use include IRC Bots, Warez Sites, Pirated Software, or Hack programs. We reserve the right to decline your business or terminate your account on the previously mentioned grounds of content or purpose.
2. Copyright InfringementCustomer's web presence must not infringe on the copyrights, trade marks, or service marks of others. Customer's web presence may contain others copyrighted material with prior consent of the copyright holder.
3. Zero Tolerance Spam PolicyWe take a zero tolerance stance against sending of unsolicited e-mail, also known as spam. Any user who sends out spam will have their account terminated without notice. We reserve the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with this policy, at our sole discretion. We also reserve the right to make any such modifications in an emergency at our sole discretion. We reserve the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee. The cost of this clean up fee is left entirely to the discretion of The Linux Fix. To help maintain the integrity and reputation of our network IP space and fight spam, all Reverse DNS (PTR Record) requests must follow and satisfy the conditions of our RDNS Request Policy. There will be no exceptions to the RDNS Policy.
4. Abusive Programs and ScriptsThe Linux Fix may provide products which include programming and scripting capabilities. The Customer agrees that if The Linux Fix determines if any program or scripts written or in use by the Customer are of questionable legal nature, or are adversely affecting services of other Customers of The Linux Fix, such programs and scripts may be removed or disabled. The Linux Fix reserves the right to disable or remove any such offending scripts/programs without prior notice to the customer. The Primary Contact will, however, be notified within two business days that such action has been taken and the reason(s) for such action.
5. Network Activity MonitoringThe Customer understands and agrees that in due course of preserving quality service for its customers, The Linux Fix may monitor and adjust Customer's network activity. Reasonable efforts are made to avoid disclosure of the Customer's data or information contained within the the network activity. The Customer further understands that The Linux Fix may be compelled to disclose complete network activity and data to law enforcement agencies when required by law.
Terms Of ServiceThe Web development and/or Web Hosting Agreement ("Agreement") is between The Linux Fix, an alias registered in the county of Shasta in the State of California; and the person (individual, company, organization or legal representative thereof) who contracts with The Linux Fix for services incorporating this Agreement, by reference ("the Customer"). This Agreement governs Customer's use of The Linux Fix's web and hosting services, which may, but is not limited to: e-mail, web sites, FTP, HTTP, and other Internet communication mediums necessary to facilitate Internet activity (“Web Hosting”).
Table of Contents
- Customer Information
- Disclaimer of Warranties
- Limitation of Damages
- Request for Customer Information
- Backup Copy
- Changes to Servers/Network
- Changes to Servers/Network
- Force Majeure
- Governing Law/Disputes
1. ServicesSubject to the terms of the Agreement, and contingent upon Customer's satisfaction of The Linux Fix’s approval requirements, The Linux Fix agrees to provide the web and/or hosting services described in the Order or Contract for the fees stated therein.
2. TermThe initial service term of any hosting Agreement shall begin on the date that The Linux Fix communicates to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order or Contract (the "Initial Term"). The minimum initial term is one month. Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a "Renewal Term") unless The Linux Fix or Customer provides the other with notice of non-renewal or change of term at least seven (7) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term".
3. Payments (a) Fees.* (i) For Web Hosting, fees are payable in advance of services by the first business day of each billing cycle, however, the Customer will have 30 days from the date of invoice issuance to satisfy the invoice before termination is incurred. Beginning with the first Service Renewal Date after the Initial Term, Customer's billing term can revert to monthly, quarterly or annually as indicated on the Order. The Linux Fix may require payment for the first billing cycle prior to beginning service. The Linux Fix will invoice Customer via electronic mail to the Primary Contact listed in the Customer's online profile, unless specific alternate arrangements have been made and agreed to by both parties in writing.
Payments must be made in United States dollars. Customer is responsible for providing The Linux Fix with changes to billing information (such as email/billing address, phone numbers, change of Primary Customer Contact, etc.). At its option, The Linux Fix may charge late fees on overdue amounts at the greater of 5% of invoice total or $5.00. The Linux Fix may suspend the service without notice if payment for the service is overdue. Fees not disputed prior to due date are conclusively deemed accurate. Customer agrees to pay The Linux Fix’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay The Linux Fix's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Adjustments.The Linux Fix may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). Reductions in fees become effective on the next Renewal Term without any pro-rata for the period covered under the prior fee schedule.
(c) Taxes.At The Linux Fix's request, Customer shall remit to The Linux Fix all sales, VAT or similar taxes imposed on the provision of the services (but not in the nature of an income tax on The Linux Fix), regardless of whether The Linux Fix failed to collect the tax at the time the related services were provided.
(d) Early Termination.Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event The Linux Fix terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for The Linux Fix's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
4. Law/AUPCustomer agrees to use the service in compliance with applicable law and The Linux Fix's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that The Linux Fix may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of The Linux Fix's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with The Linux Fix's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between The Linux Fix and Customer regarding the interpretation of the AUP, The Linux Fix's commercially reasonable interpretation of the AUP shall prevail.
5. Customer InformationCustomer represents and warrants to The Linux Fix that the information he, she or it has provided and will provide to The Linux Fix for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to The Linux Fix that he or she is at least 18 years of age. The Linux Fix may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contact.
6. IndemnificationCustomer agrees to indemnify and hold harmless The Linux Fix, The Linux Fix's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of WarrantiesTHE LINUX FiX DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LINUX FIX DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of DamagesNEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF THE LINUX FIX AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR ONE MONTH OF SERVICE.
9. Suspension/Termination(a) Suspension of Service.
Customer agrees that The Linux Fix may suspend services to Customer without notice and without liability if:
* (i) the Customer is delinquent in any monetary payments due The Linux Fix by 7 days or more.
* (ii) The Linux Fix reasonably believes that the services are being used in violation of the AUP;
* (iii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
* (iv) The Linux Fix reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
* (v) as requested by a law enforcement or regulatory agency. Customer shall pay The Linux Fix’s reasonable reinstatement fee if service is reinstated following a suspension of service under this subsection.
(b) Termination.The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if The Linux Fix fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by The Linux Fix prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
* (i) upon thirty (30) days notice if Customer is overdue on the payment of any amount due under the Agreement;
* (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10) days of a written notice from The Linux Fix describing the violation in reasonable detail;
* (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or
* (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon seven (7) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer InformationCustomer agrees that The Linux Fix may, without notice to Customer:
* (a) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that The Linux Fix believes violates applicable law, and
* (b) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up CopyCustomer or Customer's Agent agrees to maintain a current copy of all content hosted by The Linux Fix notwithstanding any agreement by The Linux Fix to provide back up services. The Linux Fix makes no warranty as to customer data, and is not responsible for maintaining backup copies.
12. Changes to The Linux Fix's Servers/NetworkUpgrades and other changes in The Linux Fix's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. The Linux Fix reserves the right to change its network in its commercially reasonable discretion, and The Linux Fix shall not be liable for any resulting harm to Customer. Prior notice will be given to Customer of any such changes and their potential impact on Customer's web site.
13. NoticesNotices and requests to The Linux Fix under the Agreement shall be given via electronic form submission using the form located in the Customer's login area under "Contact". Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force MajeureThe Linux Fix shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond The Linux Fix's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/DisputesThe Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE LOCAL, STATE AND FEDERAL COURTS IN SHASTA COUNTY, CALIFORNIA AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. MiscellaneousEach party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written contract signed by both parties. The terms on Customer's purchase order or other business forms are not binding on The Linux Fix unless they are expressly incorporated into a formal written contract signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without The Linux Fix's prior written consent. The Linux Fix's approval for assignment is contingent on the assignee meeting The Linux Fix's credit approval criteria. The Linux Fix may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.