This Terms of Service (“Agreement”) is a legally binding contract between PhotoWebHost (“PhotoWebHost”) and you (“Customer,” “you” or “your”) that shall govern the purchase and use, in any manner, of the services provided by PhotoWebHost to Customer (collectively, the “Services”).
By purchasing and/or using the Services in any manner, you represent that you have read, understand, and agree to all terms and conditions set forth in this Agreement, and that you are at least eighteen (18) years old and have the legal ability to engage in a contract in the state of Queensland.
If you do not agree to all the terms and conditions set forth in this Agreement, then you may not use any of the Services. If you are already a customer of PhotoWebHost and do not agree with the terms and conditions set forth in this Agreement, you should immediately contact PhotoWebHost to cancel your Services.
1. OWNERSHIP AND SERVICES PURCHASED
1.1. The individual or entity set out in our records as the primary billing contact shall be the owner of the account.
1.2. The features and details of the Services governed by this Agreement are described on the web pages setting out the particular services or products you have purchased (“Service Description Page”) based on their description on the Service Description Page as of the Effective Date, as defined below. PhotoWebHost may modify the products and services it offers from time-to-time. Should the Service Description Page change subsequent to the Effective Date, we have no obligation to modify the Service to reflect such a change. The services and products provided to you by PhotoWebHost as set out on the Service Description Page, are referred to as the “Services.”
1.3. Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. You may terminate this Agreement if such a change materially affects the Services.
2. TERM OF AGREEMENT
2.1. This Agreement becomes effective immediately when Customer clicks “I Agree.” (“Effective Date”) and remains effective and binding until terminated by either party as outlined below. This Agreement may only be modified by a written amendment signed by an authorized executive of PhotoWebHost, or by the posting by PhotoWebHost of a revised version.
2.2. The term of this Agreement is set to the Customer’s billing term (“Term”). If no Term is set out, the Term shall be one (1) year. Upon expiration of the initial Term, this Agreement shall renew for periods equal to the length of the initial Term, unless one party provides notice of its intent to terminate as set out in this Agreement.
3. OBEYING THE LAW
3.1. PhotoWebHost is registered and located within Australia and as such, we are required to comply with the laws and official policies of Australia, regardless of where the Services are provided. In addition, PhotoWebHost will comply with appropriate laws and official policies set forth by the State of Queensland.
4. PAYMENTS AND BILLING
4.1. PhotoWebHost will automatically bill your payment method on file up to fifteen (15) days prior to the due date on all terms of one (1) or more years; for terms less than one (1) year in length, PhotoWebHost will attempt to bill your payment method on file up to five (5) days prior to due date. All fees are billed in United States Dollars (“USD”) and are subject to change with thirty (30) days notice prior notice to you.
4.2. Your “Billing Term” is the period of time you have chosen to receive bills for the Services. For example, your Billing Term may be monthly, quarterly, or annually.
4.3. PhotoWebHost is only able to automatically collect payment from customers with credit cards stored on file (as opposed to credit cards used one for one time transactions) or active PayPal subscriptions. All other payment methods (one time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by you. It is your obligation to ensure that reoccurring fees are paid on their due date.
4.4. As a customer of PhotoWebHost, it is your responsibility to ensure that all billing information on file with PhotoWebHost is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. PhotoWebHost screens all orders for fraud and other unethical practices. Services will not be activated until this fraud screen is completed. In certain cases, if your account is flagged for fraud, third party services, such as domain name registrations, will not be processed. PhotoWebHost has no liability for the failure to provide Services, including third party services, if your account fails its fraud screen.
5. LATE PAYMENTS
5.1. Any account not paid in full by the end of the first day of the Billing Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, PhotoWebHost reserves the right to suspend your Service(s) with PhotoWebHost and to charge a $10 “late penalty.” Fourteen (14) days following suspension of Services for non-payment, PhotoWebHost reserves the right to terminate Service(s) for non-payment.
5.2. PhotoWebHost is not responsible for any damages or losses as a result of suspension or termination for non-payment of your account. In addition, PhotoWebHost reserves the right to refuse to re-activate your Services until any and all outstanding invoice(s) have been paid in full.
6. REFUND POLICY AND BILLING DISPUTES
6.1. PhotoWebHost offers a thirty (30) day money back guarantee on shared web hosting. After the thirty (30) day money back guarantee, eligible plans are eligible for an account credit on a prorated basis. Such credits will have any previous extended term discounts withheld from the total credit amount and will be calculated based on the number of months remaining in your billing cycle.
6.2. No refunds are offered on custom packages, setup fees, domain registrations, domain transfers, domain renewals, SSL certificates, addons, dedicated IP addresses, advanced support fees, processing fees, or software licenses. PhotoWebHost reserves the right to deduct fees for value added services that may have been included in the Services at no additional fee, such as a SSL certificate or free domain name registration, from any refunds or account credits.
6.3. Only first-time accounts are eligible for a refund under the 30 day money back guarantee. For example, if you had or still have an account with PhotoWebHost before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with PhotoWebHost. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement.
6.4. Refunds will be issued only to the payment method that the original payment was sent from, and may take up to one (1) week to process. Eligible payments older than sixty (60) days may require a refund via PayPal due to PhotoWebHost’s merchant account policies and procedures.
6.5. The following methods of payment are not refundable any circumstances (including during the money back guarantee period, if one applies), and refunds will be posted solely as credit to the hosting account for current or future Services: bank wire transfers, Western Union payments, checks and money orders.
6.6. PhotoWebHost will not activate new orders or provide additional Services for customers who have an outstanding balance with PhotoWebHost. For a new order to be setup or a new package to be activated, you must have a balance of $0.00, unless otherwise stated by PhotoWebHost in writing.
6.7. Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and PhotoWebHost is not responsible for any change in exchange rates between time of payment and time of refund. In addition, PhotoWebHost reserves the right to refuse a refund at any time for any or no reason.
6.8. If you believe there is an error in PhotoWebHost’s billing, you must contact PhotoWebHost about it, in writing, within thirty (30) days of the date you are billed or charged. PhotoWebHost’s obligation to consider your claim is contingent on your providing it with sufficient facts for PhotoWebHost to investigate your claims. You waive your right to dispute any charges or fees if you fail to notify PhotoWebHost in writing or meet the deadline set out above. If PhotoWebHost finds that your claim is valid, PhotoWebHost agrees to credit your account on your next billing date. Third party fees are not subject to this dispute provision and are final.
7. CHARGEBACKS, REVERSALS, AND RETRIEVALS
7.1. If PhotoWebHost receives a chargeback or payment dispute from a credit card company, bank, or Paypal, your Services may be suspended without notice. A $50 chargeback fee (issued to recoup mandatory fees passed on to PhotoWebHost by the credit card company), plus any outstanding balances accrued as a result of the chargeback(s), must be paid in full before service is restored. Instead of issuing a chargeback, please contact PhotoWebHost’s billing team to address any billing issues.
7.2. If PhotoWebHost appeals a chargeback or other payment dispute and wins the dispute or appeal, the funds will likely be returned to PhotoWebHost by the credit card company or bank. Any double payment resulting from this process will be applied to Customer’s account in the form of a service credit.
8. CANCELLATION OF SERVICES
8.1. Either party may terminate this Agreement by providing notice to the other as provided herein.
8.2. You may cancel service by completing PhotoWebHost’s cancellation form located at http://www.PhotoWebHost.com/cancel/. To reduce the likelihood of error and ensure the security of your account, PhotoWebHost does not accept cancellations via any other method or location, including, but not limited to, telephone, email, or live chat. Cancellations are not final until confirmed by a representative of PhotoWebHost in writing by email.
8.3. Cancellations must be requested via the form indicated above 48 hours or more prior to the Service’s renewal date. If a cancellation notice is not received within the required time frame, you will be billed for the next Billing Term and are responsible for payment as set forth above.
8.4. If you pay PhotoWebHost via PayPal, it is your responsibility to cancel any subscription for recurring PayPal payments. PhotoWebHost (which has no control over PayPal subscription payments) is not responsible for payments made from your PayPal account after cancellation and is under no obligation to refund such payments made after cancellation.
8.5. PhotoWebHost may terminate this Agreement at any time by providing notice to Customers via email. Should PhotoWebHost terminate this Agreement for any reason other than a material breach, or violation of PhotoWebHost’s Acceptable Use Policy, any prepaid fees shall be refunded.
8.6. One party may also terminate this Agreement upon the occurrence of a material breach which has not been cured by the other party within ten (10) days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
9. REFUSAL OF SERVICE
9.1. PhotoWebHost reserves the right to refuse service to anyone at any time. Any material that, in PhotoWebHost’s judgment, is obscene, threatening, illegal, or violates PhotoWebHost’s terms of service in any manner may be removed from PhotoWebHost’s servers (or otherwise disabled), with or without notice.
9.2. Similarly, PhotoWebHost reserves the right to cancel, suspend, or otherwise restrict access to the Service(s) it provides at any time, for any or no reason, and with or without notice. PhotoWebHost is not responsible for any damages or loss of data resulting from such suspension or termination.
9.3. If any manner of communication with PhotoWebHost’s staff could be construed as belligerent, vulgar (curse words), attacking, highly rude, threatening, or abusive, you will be issued one warning. If the communication continues, your account may be suspended or terminated without refund. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or initiate a chargeback.
9.4. PhotoWebHost happily accepts orders from outside Australia, but may limit accounts from certain countries with a high fraud rate. To help protect PhotoWebHost and its customers from fraud, PhotoWebHost may ask you to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and denied.
10. RESOURCE USAGE
10.1. Each customer is required to utilize as little server resources as possible, so as to allow for reasonable performance by all PhotoWebHost customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal service performance for other users. PhotoWebHost reserves the right to suspend or terminate Services on any account that, at its sole discretion, is abusing server resources. Such suspension or termination can occur at any time without prior warning, and for any or no reason. See Disk Space, Bandwidth, and Email Usage Definitions.
10.2. Enforced resource limits for shared packages:
10% CPU Usage
5% Memory Usage or 512 MB Memory
50 Running Processes
15 Minute Max Execution Time
100,000 Total Inodes
100 outgoing email messages per 60 minute period (all excess messages will be discarded and not delivered)
11. BANDWIDTH USAGE
11.1. You are allocated a monthly bandwidth allowance depending on the hosting package you purchase. See Disk Space, Bandwidth, and Email Usage Definitions.
11.2. Should your account pass the allocated amount, PhotoWebHost reserves the right to: a) suspend the account until the start of the next allocation, b) suspend the account until more bandwidth is purchased at an additional fee, c) suspend the account until you upgrade to a higher level of package, and/or d) charge you an additional fee for the overages.
11.3. Unused transfer in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts unless otherwise specified by a representative of PhotoWebHost in writing.
11.4. Like other resources, customers are expected to demonstrate responsible usage of bandwidth resources, so as to allow for reasonable performance by all PhotoWebHost customers. PhotoWebHost regularly monitors bandwidth usage and reserve the right to suspend, terminate, and/or limit (such as through port speed limiting) Services on any account, that at its sole discretion, is using an abnormally large amount of bandwidth. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason.
12.1. PhotoWebHost grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by PhotoWebHost solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in PhotoWebHost’s technology shall remain with PhotoWebHost, or its licensors. You are not permitted to circumvent any devices designed to protect PhotoWebHost, or its licensor’s ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
12.2. You grant PhotoWebHost, or to any third parties used by PhotoWebHost to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your End Users, in conjunction with the Services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, or your licensors.
13. SERVICE MODIFICATIONS
13.1. PhotoWebHost reserves the right to add, modify, or remove any or all features from any service PhotoWebHost provides, at any time, with or without notice. This includes, but is not limited to, disk space limits, bandwidth limits, domain limits, pricing, third party applications and any bonus packages. These changes can be made for any or no reason and PhotoWebHost does not guarantee the availability of any feature, whether written or implied. If the removal of a feature materially impacts your ability to use the Service, you may terminate this Agreement. For the purposes of this paragraph only, the term “materially” means that a reasonable business person would not have purchased the Services for the purposes used by you.
14. UPTIME GUARANTEE
14.1. PhotoWebHost guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month. If PhotoWebHost fails to meet its Uptime Guarantee, you will be issued a credit equivalent to one (1) day of service per sixty (60) minutes downtime. The first 60 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service.
14.2. Credits are only available for future services/invoices and cannot be issued as refunds. All credit requests must be sent via our official request form at http://www.PhotoWebHost.com/credit/ no later than the tenth (10th) day of the month following the SLA (as that term is defined below) violation. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame cannot be approved.
14.3. For example, if you experienced less than 99.9% uptime in the month of November, you would need to submit your request for credit no later than December 10th.
14.4. The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer maxing its resource container, issues resulting from errors or omissions by the customer, issues relating to the customer’s ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are at the discretion of PhotoWebHost, based on its investigation of any issue that is covered by this section.
14.5. If PhotoWebHost provides a credit, or Service Level Agreement, for a particular Service, this shall be your sole and exclusive remedy for defects in, or issues with, the Service.
15. SUPPORT POLICY
15.1. PhotoWebHost will provide technical support to you twenty-four (24) hours a day, three-hundred-sixty-five (365) days a year. The only official method for technical support is via PhotoWebHost’s help desk at http://PhotoWebHost.com/support. Telephone and live chat support are not official methods of support and are governed by the terms and conditions set forth in the following clause.
15.2. Limited support will be provided, at PhotoWebHost’s discretion and subject to availability of staff, via telephone and/or live chat. PhotoWebHost will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but these options are not official methods of support and no guarantee is made as to the availability, accessibility, or technical expertise provided via these mediums.
15.3. Inquires via telephone or live chat support should be limited to general questions which do not require access to any account or server to investigate or resolve and should not be used to request the status of or provide updates to a help desk ticket. Any issue requiring investigation, research, or access to an account/server should be sent via the help desk. PhotoWebHost reserves the right to direct any issue to the help desk at its discretion and to refuse to provide support for such issues via telephone or live chat.
16. ADVANCED SUPPORT POLICY
16.1. Support to Customer is limited to PhotoWebHost’s area of expertise and is available only for issues related to the physical functioning of the Services. PhotoWebHost does not provide support for any third party software including, but not limited to, software offered by but not developed by PhotoWebHost. PhotoWebHost reserves the right to refuse assistance with and/or assess an “Advanced Support Fee” of $45.00 USD per hour (1 hour minimum) for any issue that, at PhotoWebHost’s sole discretion, is: (a) outside the scope of standard support; or (b) caused by customer error or omission. PhotoWebHost will always ask for your permission before providing advanced support that may be subject to a fee. By providing your permission, you agree to pay Advanced Support Fees as billed.
17. BACKUP SERVICES
17.1. Your use of PhotoWebHost’s Services is at your sole risk. This service is provided to you as a courtesy. PhotoWebHost is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on PhotoWebHost’s servers. Any and all backup services provided by PhotoWebHost, whether paid or not, are offered with no warranty or guarantee of their date, accuracy, and integrity.
17.2. Backups are performed on servers that house shared packages. If your hosting account exceeds 150,000 inodes, the account will not be included in PhotoWebHost’s automatic backup process.
17.3. If you ask PhotoWebHost to restore a backup of your data that is located on a backup server maintained by PhotoWebHost, you agree to pay a non-refundable “restoration fee” of $10.00 per backup restored to complete the request. By requesting that PhotoWebHost restore a backup for you, you also confirm a backup restoration will overwrite any and all current data on your account. PhotoWebHost cannot be held liable if a backup restoration does not complete successfully. PhotoWebHost will never charge a backup fee to restore a backup to address an error or omission caused by PhotoWebHost.
18. DOMAIN NAME REGISTRATIONS, TRANSFERS, AND RENEWALS
18.1. PhotoWebHost will make every effort to ensure domain names are registered, transferred, and/or renewed on time. If a domain name registration, renewal, or transfer is not processed when due, it is your responsibility to contact PhotoWebHost within fifteen (15) days of the incident for PhotoWebHost to investigate. Redemption fees may be charged to Customer for domains that remain expired for more than thirty (30) days, when no contact is made to PhotoWebHost in the required timeframe. PhotoWebHost’s liability is limited to the amount paid for the domain name.
18.2 For generic top-level domains governed by ICANN, you agree that you may not transfer your domain registration to another domain registrar during the first sixty (60) days from the effective date of your: (1) initial domain registration or (2) completion of a domain transfer into PhotoWebHost. If you choose to utilize our transfer lock service, you agree to provide written authorization (electronic acceptance is acceptable) to PhotoWebHost for the transfer of the domain to another registrar and agree to pay any and all fees that may be charged by PhotoWebHost to effect the transfer. You agree your request to transfer your domain to another registrar may be denied pursuant to the Inter-Registrar Transfer Policy.
18.3 For country-code top-level domains, as established by each registry, you agree that you may not transfer a domain to another registrar during the first sixty (60) days of the initial registration or after expiration of the domain. You agree your request to transfer your domain to another registrar may be denied pursuant to the Inter-Registrar Transfer Policy.
19. EXPIRED DOMAIN DELETION POLICY
19.1. Immediately after the expiration of the term of a domain name’s registration services and before deletion of the domain name in the applicable registry’s database, you acknowledge that PhotoWebHost may direct the domain name to name servers and IP address(es) designated by PhotoWebHost, including, without limitation, to no IP address or to IP address(es) which host a parking page and/or a commercial search engine that may display advertisements. You acknowledge that PhotoWebHost may either leave your WHOIS information intact or that PhotoWebHost may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
19.2. For a period of approximately thirty (30) days after expiration of the term of domain name registration services, you acknowledge that PhotoWebHost may provide a procedure by which expired domain name registration services may be renewed. You acknowledge and agree that PhotoWebHost may, but is not obligated to, offer this process, called the “reactivation period.” You acknowledge that you assume all risks and all consequences if you wait until close to or after the expiration of the original term of domain name registration services to attempt to renew the domain name registration services. You acknowledge that PhotoWebHost, for any reason and in its sole discretion, may choose not to offer a reactivation period and that PhotoWebHost shall not be liable therefore. You acknowledge that reactivation period renewal processes, if any, may involve additional fees which PhotoWebHost may determine at its discretion. You acknowledge and agree that PhotoWebHost may make expired domain name services(s) available to third parties, that PhotoWebHost may auction off the rights to expired domain name services (the auction beginning near the end or after the end of the reactivation period), and/or that expired domain name registration services may be re-registered to any party at any time.
20. IP ADDRESS ALLOCATION
20.1. Any dedicated IP order, in addition to ones provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers (“ARIN”). PhotoWebHost reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.
21. ACCEPTABLE USAGE POLICY
21.1. You shall use PhotoWebHost’s services only for lawful purposes. Transmission, storage, or presentation of any information, data, or material in violation of the laws of the State of Queensland or Austrlaia is prohibited. This includes, but is not limited to: copyrighted material in which you are not the copyright holder, material that is threatening or obscene, or material protected by trade secrets or other statutes. You agree to indemnify and hold harmless PhotoWebHost from any claims resulting from the use of the service which damages you or any other party.
21.2. PhotoWebHost reserves the right to terminate Services for any customer or End User activity that exposes it to legal liability or endangers its ability to provide services to other customers. The contents, links, or actions on any Services listed below are a violation of this Agreement. This is not an exhaustive list, but is designed to assist you in evaluating whether PhotoWebHost is the appropriate service provider for you:
Child Pornography – Hosting, Distributing, or Linking to Pornography Involving a Person Under Legal Age
Copyright Infringement – Hosting, Distributing, or Linking to Copyright Infringed Materials
CPU/Memory/Resource Abuse – Consuming Excessive Amount of Server Resources Causing Server Performance Issues
DoS Source – Source of Denial of Service Attack
DoS Target – Target of Denial of Service Attack
File Scripts – File Dump/Mirror Scripts (similar to rapidshare)
Forgery – Faking an IP Address, Hostname, E-Mail Address, or Header
Fraud Site – Hosting or Linking to a Website Intended to Deceive the Public including, but not limited to sites listed at aa419.org & escrow-fraud.com
HYIP – Hosting or Linking to a High Yield Investment Program Website
Identity Theft – Hosting, Distributing, or Linking to Stolen Account Identification Information
Infection – Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms
Investment Sites – FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme, High-Yield Interest Programs (HYIP) or Related Sites
IRC – Internet Relay Chat Server, including IRC Scripts/Bots
Mass Storage – Storing Mass Amounts of Backups, Archives, Videos, etc.
PayDay Loan Sites – including any site related to PayDay loans, PayDay loan affiliate programs, etc.
Pharmacy Sites – Sites that engage in the illegal distribution of prescription medications, including, but not limited to, promotion, marketing, or sale of prescription medications without a valid prescription.
Phishing – Identity Theft by Email Under False Pretense
Proxy Site – Hosting of or linking to an Anonymous Proxy Server
Bulk Email – No more than 500 emails of similar content (Opt In)
Spam Email – Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE)
Spam List – Hosting, Distributing, or Linking to Email Address Lists for Spam
Spam Site – A Site Advertised by Spam Email or Spam Web
Spam Ware – Hosting, Distributing, or Linking to Software Designed for Spamming
Spam Web – Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, Guestbooks, or Social Media
Spamhaus – Spam Causing Blacklisting of an IP at www.spamhaus.org for Malicious Activity
Terrorist Site – Hosting or Linking to a Site Advocating Terrorism
Toolz – Hosting, Distributing, or Linking to Tools or Instructional Material on Hacking/Cracking or Other Illegal Activity
Trademark – Hosting, Distributing, or Linking to Trademark Infringed Materials
Warez – Hosting, Distributing, or Linking to Crackz, Hackz, KeyGenz, Serialz, or Pirated Software
Any other material PhotoWebHost judges to be threatening or obscene.
21.3. You may not resell individual services within any single account such as web space, emails accounts, add on domains, or mailing lists. All domains, add-on domains, and sub domains must be for sites controlled by or promoting published content or businesses that are solely controlled by the owner of the account as described above.
21.4. PhotoWebHost’s designated agent for receipt of copyright complaints is: Matt Brading. You may contact PhotoWebHost’s agent via email by emailing admin at PhotoWebHost dot com (please make replacements as necessary). Copyright complaints are handled pursuant to the Digital Millennium Copyright Act (“DMCA”). Complaints that do not comply with the DMCA will not be processed. You are required to comply with the DMCA in using PhotoWebHost’s Services, and presenting copyright complaints.
22. RESTRICTIONS ON STORAGE SPACE USAGE
22.1. All accounts are subject to the following restrictions on storage space usage: a) accounts must have valid, working websites, and not violate any previously subscribed terms; b) accounts are not for use of mass storage of backups, files, audio, video, zip files or others, as determined by PhotoWebHost, at its sole discretion; and c) accounts are not for use of mass distribution of files, such as torrents or mirrors. Any account found violating these terms may be suspended or terminated without warning.
23. MULTI-LOCATION HOSTING
23.1. PhotoWebHost does not guarantee the availability of any and all host locations, and reserves the right to add, move, modify, or remove any location at any time without notification. PhotoWebHost also reserves the right to deny the transfer of any account to a new location for any or no reason.
24.1. Your Warranties to PhotoWebHost
24.1.1. You represent and warrant to PhotoWebHost that:
(i) you have the experience and knowledge necessary to use the Services;
(ii) you will provide PhotoWebHost with material that may be implemented by it to provide the Services without extra effort on PhotoWebHost’s part; and
(iii) you have sufficient knowledge about administering, designing, and operating the functions facilitated by the Service to take advantage of it.
24.1.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all material provided to PhotoWebHost, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
24.2. PhotoWebHost’s Warranties
24.2.1. YOU EXPRESSLY AGREE THAT USE OF PHOTOWEBHOST’S SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, PHOTOWEBHOST HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER PHOTOWEBHOST, ITS PARENT, ITS EMPLOYEES, AGENTS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT PHOTOWEBHOST’S SERVICES WILL NOT BE INTERRUPTED OR BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH PHOTOWEBHOST’S NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. PHOTOWEBHOST SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BYPHOTOWEBHOST. NO WARRANTIES MADE BY THESE THIRD PARTIES TO PHOTOWEBHOST SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
24.2.2. THE WARRANTY DISCLAIMERS CONTAINED IN THIS AGREEMENT EXTEND TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM PHOTOWEBHOST, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
24.3. The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods.
25. LIMITATION OF LIABILITY
25.1. YOU ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY YOU FOR ONE (1) MONTH OF SERVICE.
25.2. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL PHOTOWEBHOST, ITS OFFICERS, AGENTS OR THIRD PARTIES PROVIDING SERVICES THROUGH PHOTOWEBHOST, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY THIRD PARTY; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PHOTOWEBHOST RECORDS, PROGRAMS OR SERVICES. YOU AGREE THAT THIS PARAGRAPH APPLIES EVEN IF PHOTOWEBHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENTS ON ALL SERVERS AND ALL SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS, PHOTOWEBHOST’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
26.1. You agree to indemnify, defend and hold harmless PhotoWebHost, and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and collectively, “indemnified parties”) from and against any and all claims, damages, losses. liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of PhotoWebHost’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services the use of which is facilities by PhotoWebHost.
27. GOVERNING LAW AND DISPUTES
27.1. This agreement shall be governed by the laws of the State of Queensland, exclusive of its choice of law principles, and the laws of Australia, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Cairns, Queensland, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
28. PARTIAL INVALIDITY
28.1. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. PhotoWebHost and Customer agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision.
29. CHANGES TO THE TERMS OF SERVICE
29.1. PhotoWebHost reserves the right to modify this Agreement, in whole or in part, from time-to-time. PhotoWebHost will provide you with notices of such a change by posting notice on your control panel. Unless PhotoWebHost is required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes your ability to use the Services, you may terminate this Agreement. You are encouraged to review the content of this Agreement on a regular basis.
30.1. This Agreement may be assigned by PhotoWebHost. It may not be assigned by you. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
31. FORCE MAJEURE
31.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
32. NO WAIVER
32.1. No waiver of rights under this Agreement or any PhotoWebHost policy, or agreement between Customer and PhotoWebHost shall constitute a subsequent waiver of this or any other right under this Agreement.
33. NO AGENCY
33.1. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
34.1. The following paragraphs shall survive the termination of this Agreement: 19, 25 through 28, and 34.