Dedicated Hosting Terms of Service
The Terms and Conditions set forth herein constitute the full and complete agreement between you and Add2Net, Inc. (doing business as and hereinafter referred to as "Lunarpages").
LUNARPAGES DEDICATED HOSTING TERMS OF SERVICE
The terms and conditions set forth herein constitute the full and complete agreement between you and Add2Net, Inc. (doing business as and hereinafter referred to as “Lunarpages”) concerning your DEDICATED HOSTING AGREEMENT. Your agreement to be bound by these terms is acknowledged by your further use of the Dedicated Hosting Services, Dedicated Hosting Support Services and/or any Lunarpages software made available to you. The terms contained herein supercede and replace any other agreement or negotiation between you and Lunarpages with respect to Dedicated Hosting Services whether oral, written or otherwise including any statements made by any representative of Lunarpages at any time.
This agreement applies to all Lunarpages Dedicated Hosting plans only. Other Agreements and policies may apply.
1 FEES; PAYMENT OF FEES
1.1 - FEES
1.1.1 Standard Fees.
Lunarpages charges the following fees where applicable. All such fees are subject to change with 30 days notice. Lunarpages Fees are set at the time of the commencement of your account at the rates indicated on the Lunarpages Dedicated Hosting web page at corresponding to the selected plan. All fees are subject to change. Discounted plans are those in effect at the time of the commencement of your account and are charged as stated therein. Unless otherwise stated, the following fees apply:
- Account Set–Up Fee – The Administrative fee for the set up of your account. This fee may be waived or credited back to you under some discounted plans.
- Service Fee – The monthly fee for your Web Hosting services. This may be charged annually under some discounted plans.
- Domain Registration Fee – Optional fee for the registration of an available Domain Name. This fee may be waived under some discounted plans.
1.1.2 Promotional Rates.
Lunarpages reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the then existing rights and responsibilities of each party. Lunarpages also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice.
188.8.131.52 Long Term Agreement.
In some instances Lunarpages will agree to waive the “Set Up Fee” upon your agreement to maintain your account in good standing for 12 or 24 months. In such event, and upon your express agreement to the terms of this paragraph, the “Set Up Fee” will not be collected at the commencement of your agreement. Instead, the “Set Up Fee” will be collected upon the early termination of your account (i.e. any termination before the completion of the full term of your agreement term). You hereby authorize Lunarpages to charge your credit card or seek payment from you via your selected choice of payment options immediately in such event and without further notice to you. Upon the successful completion of the full term of your agreement, however, the “Set Up Fee” will be waived and thereby no longer subject to collection.
1.1.3 Right to Change.
Lunarpages specifically reserves the right to institute additional charges upon notice to you. Lunarpages also reserves the right to alter, change, amend or delete charges at its sole option. Lunarpages further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.2 - PAYMENT OF FEES
1.2.1 Acceptable Payment Methods.
Lunarpages accepts payment by Credit Card (American Express, Visa, MasterCard, Discover) and by personal check, cashier’s check, electronic check or money order.
1.2.2 Payment by Credit Card.
Prior to activation of your user account and at any applicable time thereafter you agree to allow Lunarpages to charge your provided credit card and at stated regular intervals the agreed service fee amount for the stated period together with any Lunarpages set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize Lunarpages to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. You agree to maintain current valid existing credit card information with Lunarpages for the purpose of satisfying the Lunarpages charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for account suspension and/or termination at the sole option of Lunarpages under Paragraph 8 herein.
1.2.3 Payment by Check or Money Order.
Prior to activation of your user account you agree to submit a check or money order payable in U.S. dollars against a bank located within the United States. Lunarpages is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by Lunarpages. Invoices will be submitted to you as a courtesy only. Payment for subsequent fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is received by Lunarpages. An administrative fee of $25.00 will be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of Lunarpages under Paragraph 8 herein. It is recommended that in order to avoid any service interruption that you submit your payment to Lunarpages a sufficient time before the expiration of the current service period so that it reaches Lunarpages in advance of the renewal date.
1.3 - REFUNDS
1.3.1 Refunds of Fees.
Refunds of Service Fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this agreement under paragraph 8.1. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date. Lunarpages may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. There will be no other refunds.
2 DEDICATED WEB HOSTING SERVICES
2.1 Web Hosting.
For the term of the agreement as set forth herein Lunarpages agrees to provide web hosting services according the plan selected by you upon activation of your account. Lunarpages reserves the right to change, amend and/or otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. You agree to receive periodic emails from Lunarpages in regards to products, services, your account, and system updates.
Lunarpages Web Hosting accounts include the use of various software programs including a control panel, CGI scripts, account and billing functionality as well as email, storage and bandwidth specifications. All such services are offered incidentally to the web hosting services and are not offered independently. Lunarpages is under no obligation to continue the provision of such services or the availability of any such software and may discontinue, alter, change, upgrade or increase any such services or the availability of such services at any time. Lunarpages is under no obligation to continue to provide such services without a fee and may institute a fee or charge for any such services upon notice to you and you agree to pay for such charges unless you provide notice of your refusal of such services within the time specified in any such notice.
2.2 Web Hosting Backup Service.
As an “Other Service”, Lunarpages is pleased to offer Managed Backups service by R1Soft®. R1Soft utilizes Continuous Data Protection® technology to back up at the block level instead of the file level. This feature shortens backup windows and reduces disk I/O compared to file-based full and incremental backups. R1Soft services are provided by Lunarpages according to the terms and limitations set forth herein according to the service options and pricing that you select at the time of your registration for this service. In the event that the size of your backup exceeds the limitation of the service option that you select, you authorize Lunarpages, at Lunarpages’ exclusive option to (a) remove old restoration points (b) remove log files or (c) increase your selected service option to accommodate the size of your directory structure so that your backup may be completed on an ongoing basis. Any increase in space and price will continue on a monthly basis and will be your responsibility. You may check the size of your directory at any time via the Control Panel for your account. If at any time thereafter, you wish to reduce your service option for this service you may do so by contacting Lunarpages Customer Service. Any such reduction shall become effective at the beginning of the following billing cycle.
3 DOMAIN REGISTRATION SERVICES
At Customer’s request, Lunarpages may also acquire a Second-Level Domain Name (“Domain Name”), [e.g. yourdomain.com] on behalf of Customer. Lunarpages will not own or otherwise control any domain name registered on your behalf under this paragraph. Lunarpages provides this service as a convenience to you only and you hereby waive any and all claims which you may have, or which may later arise, against Lunarpages for any and all damages, losses, claims or expenses arising out of or related to the acquisition, registration and/or use of the Domain Name. Any costs incurred by Lunarpages to obtain and/or maintain the Domain Name on your behalf shall be charged to you by Lunarpages under the provision therefore elsewhere herein.
As a Domain Registrar, Lunarpages has adopted the Uniform Domain Name Dispute Resolution Policy Issued by ICANN and adopted August 26, 1999. This policy governs the relationship between you and Lunarpages as a Domain Registrar and/or you and any Domain registrar that we may use to register any name on your behalf. The Policy may be reviewed here and is incorporated herein as though set forth at length.
4 ACCEPTABLE USE
Lunarpages strictly enforces compliance with its acceptable use terms under the Acceptable Use Policy located on the Lunarpages Website. The terms of that policy are incorporated herein as though stated at length. Failure to so comply is cause for immediate suspension and possible termination under paragraph (8) herein.
Lunarpages is a registered Service Provider with the United States Copyright office and follows the provisions of the Digital Millennium Copyright Act (“DMCA”) for any alleged violation of copyrights when a proper DMCA complaint is logged as set forth herein. You agree to timely respond to any communications sent to you regarding or otherwise relating to any alleged copyright violation. Your failure to respond may subject you to suspension and/or termination.
Subject to the terms and conditions set forth herein, Lunarpages hereby grants you a non-exclusive, limited, personal, non-transferable and fully revocable license to use the Lunarpages Web Hosting Service and software associated therewith for the term of the agreement as set forth herein. You specifically disclaim and waive any and all right or title to any and all aspects of the service and any and all software associated therewith.
This license is non-transferable. Sharing or allowing the use of the service or any aspect thereof with any other person or entity is grounds for immediate suspension and such suspension shall not waive any claim that Lunarpages may have against you for damages resulting from the violation of this paragraph.
You agree yourself and you agree not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Lunarpages services, web site and/or software.
6 OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Lunarpages including but not limited to Lunarpages customer service and maintenance tools. You acknowledge that all right and title to any such Lunarpages intellectual property shall remain the sole property of Lunarpages and that you have no right, title or interest therein. You further agree not to provide access to the Lunarpages services to any third party. You agree yourself and you agree not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Lunarpages Services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Lunarpages service shall also remain the sole property or Lunarpages.
6.2 During the term of this agreement you may have access to certain information and materials relating to the Lunarpages business, customers, software technology and marketing which Lunarpages treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the express prior written consent of Lunarpages; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
The initial term of this agreement shall be one (1) month with automatic renewal for subsequent additional months after the expiration of the initial term. Lunarpages reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The term of the agreement, however, shall remain one (1) month. This agreement shall automatically renew for successive renewal periods until it is terminated as permitted herein.
8 SUSPENSION AND TERMINATION
At the sole option of Lunarpages for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) and Section 4 (Acceptable Use) Lunarpages may immediately and without prior notice to you suspend your account by deactivating any access by you or by web users to any or all information contained on the Lunarpages servers related to your account while maintaining the information and data related to your account upon the Lunarpages servers. Suspension shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. In the event of any such suspension you will be notified and at the sole option of Lunarpages you may be given an opportunity to correct such breach. In the event that such breach is not corrected within the time therein specified, the account may be immediately terminated under paragraph 8.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension. There is no refund for service fees during any period of suspension. Any account that remains suspended for a period of ten (10) days or more shall be subject to immediate termination under paragraph 8.2.
This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 8.1 or (b) by either party upon 45 days notice in advance of a renewal period for any reason. Termination shall include the removal of any and all of your information from the Lunarpages dedicated servers designated to your account. Lunarpages will remain under no obligation to make any account information including but not limited to web pages, HTML, PHP, XML, other code, graphics, account information, databases, or any other information or data on such server available to you after any such termination.
8.3 In the event of termination under paragraph 8.2(a) there will be no refund provided to you. In addition, Lunarpages may at their sole option charge a termination fee not to exceed $100.00 to cover administrative and other costs associated with your suspension. The assessment of this termination fee shall not affect any right of Lunarpages under this agreement including any right to recover losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or other costs of any kind as may be applicable under California Law.
8.4 In the event of any termination under paragraph 8.2(b) of this subsection any service fees paid in advance beyond the first renewal date following the notice period under that section will be refunded to you upon your request. This refund shall not include any set-up fees, Domain Registration fees or other fees which are all non-refundable.
9.0 INFORMATION COLLECTION, ACCURACY AND USAGE
9.1 Accurate Information.
You hereby represent that the information you have provided and at any time hereafter do provide to Lunarpages concerning your identity including but not limited to your name, your physical address, your mailing address, your telephone number, email address, your billing information, your company affiliations (if any) is current and accurate. You agree to update your information on file with Lunarpages as necessary so as to maintain such current records at all times during the term of this agreement.
9.2 Law Enforcement.
You hereby consent and agree that as to any information which Lunarpages may collect from you and/or maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from Lunarpages concerning you or your account, or other information which in Lunarpages sole judgment is reasonable, Lunarpages may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information shall be within the sole discretion of Lunarpages and may include but shall not be limited to (1) compliance with court order or subpoena of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Lunarpages Terms of Service or other policies. You hereby waive any claim against Lunarpages arising out of any such disclosure.
9.3 Subpoena Policy.
Lunarpages may charge the person or entity submitting any civil subpoena or other such payment request, or any response thereto, the costs associated with compliance. Payment must be made either (a) within thirty (30) days from the date of the Lunarpages invoice for such costs and services or (b) prior to the release of the information sought, whichever is earlier. Checks should be made payable to Lunarpages.
Compliance costs are as follows:
Research, Phone Calls, Document Review - $75.00/hour
Postage, Express Mail – Costs as Billed
Copies, Scanning, Document Production - $.25/Page
During and after the term of this agreement you agree to receive periodic emails, telephone calls or SMS messages containing commercial offers from Lunarpages and certain approved marketing partners in regards to Lunarpages or such partner products or services. We may also contact you concerning your account, system conditions, changes, updates and or schedules.
10.1 Any notice under this agreement shall be given by Lunarpages to you via email at the address provided by you to Lunarpages at the commencement of this agreement or as Lunarpages is subsequently advised. Notice to you at that address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting Customer Service via the submission of a support ticket.
10.2 Any notice by you to Lunarpages shall be made by telephone to a customer service representative at 1-714-521-8150 during Lunarpages regular business hours of 7:00 a.m. to 5:00 p.m. Pacific Time. Such notice may also be sent via United States Mail to the following Address:
1908 N. Enterprise St.
Orange, CA 92865
Sections 1, 3 through 6, 8, 9, 10, 12, 13, and 15 through 19, inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
12 WARRANTEES AND LIMITATIONS
12.1 Lunarpages makes every reasonable effort to maintain operation of the Lunarpages service however because as many events and circumstances are beyond the control of Lunarpages, Lunarpages does not in any way warrant or otherwise guarantee the availability of the Lunarpages system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Lunarpages.
12.2 THE LUNARPAGES SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
12.3 In general, Lunarpages has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Lunarpages accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Lunarpages provides no warrantee for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Lunarpages system.
12.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
12.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO LUNARPAGES FOR THE THREE MONTHS OF SERVICE IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL LUNARPAGES BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
13.1 You agree to fully defend and indemnify and hold harmless Lunarpages of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Lunarpages in any way related to your use of the Lunarpages service or any portion thereof.
13.2 You agree to fully defend and indemnify and hold harmless Lunarpages of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Lunarpages service or any portion thereof. Choice of counsel remains exclusively that of Lunarpages
13.3 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless Lunarpages of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of Lunarpages.
14 FORCE MAJEURE
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
This agreement and the rights hereunder are not assignable or transferable except that Lunarpages may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Lunarpages. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
17 CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of California without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the State or Federal Courts sitting in the of the State of California, County of Orange. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
18 NO AGENCY
Notwithstanding any other provision of this agreement, Lunarpages is not your agent, partner or joint venturer in any respect.
Lunarpages may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Lunarpages web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
20 REQUIRED NOTICES
20.1 Copyright Infringement Claims.
Any notice concerning any claim of copyright infringement should be addressed to:
Add2Net, Inc - Lunarpages Division
COPYRIGHT INFRINGEMENT CLAIM
1908 N. Enterprise St.
Orange, CA 92865
Telephone (714) 521-8150
Facsimile (714) 521-8195
Pursuant to the terms of The Electronic Commerce Act of 1984 please be advised that as may be applicable to you under California Law if you are unsatisfied with the manner in which a complaint that you may have regarding the Lunarpages service you may contact the complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 1-916-445-1254.
TLD Contracts (Domain Name Registration)
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