Date Modified: August 1, 2004
This Agreement is made and entered into between SBWH, Inc. ("SBWH"), P.O. Box 6913, Santa Barbara, CA, USA and "Customer."
Terms and Conditions
SBWH offers web hosting and email services through its Web servers. SBWH does not offer dial-up services and Customer must arrange for independent access to the Internet. If any change to the terms or conditions, SBWH's services, system or pricing is unacceptable to the Customer, the Customer may terminate its account as set forth below.
SBWH's server may be used for lawful purposes only and consistent with all rights of other parties. Without limiting the foregoing, SBWH's server shall not be used in a manner that would violate any law or infringe any copyright, trademark, trade secret, right of publicity, privacy right or any other right of any person or entity or for the purpose of transmitting or storing of material which is obscene, libelous or defamatory. Any Notice of Infringement must comply with the requirements of 17 U.S.C. Section 512. Any abuse will subject Customer's account to immediate termination or suspension. Any use of the SBWH servers that disrupts the normal use of it for other Customers is considered abuse. Unauthorized modification, alteration, reverse engineering, or de-compiling of the SBWH servers is prohibited.
Unsolicited Commercial Email (UCE), also known as "Spamming" is not allowed and is considered abuse. Customers may not send unauthorized or unsolicited e-mail messages through SBWH's servers, or which carries a "return" email address hosted by SBWH, or that refers in the body of the message to a domain that is hosted by SBWH. If SBWH determines that abuse has occurred, then the Customer's account may be terminated or suspended immediately, and, if terminated, the balance of Customer's quarterly payment will not be refunded.
SBWH does not allow pornography to be stored on its Web servers. Customer hereby warrants that it will not store or publish pornographic material on the Web servers.
SBWH may charge customers $85 per hour for any time required to address the affects of abuse that results from Customers' actions.
SBWH reserves the right to modify these terms and conditions, change any service offered or the features of any service offered or its servers with reasonable notice, including changes to access and use procedures. SBWH will publish notice of contract modification and fee increases at least 30 days before such changes take effect, such publication shall constitute due notice.
Payment terms are net 10 days. Payments made more than 30 days after billing date are considered delinquent. Delinquent accounts are subject to immediate suspension and/or termination without further notice. A $20 reactivation fee will be charged upon reactivation of suspended or terminated accounts. A $25 returned check fee will be assessed for any check returned for any reason. Accounts paid by a returned check may be suspended until the balance is paid in full, including returned check and reactivation fees.
Either Customer or SBWH may terminate the Customer's account at any time, with or without reason, upon 30 days written notice. Termination requests by the Customer must be received by SBWH in writing via email, fax, or postal service. Such requests must be received before the end of the billing cycle. Monthly charges and payments will not be prorated. SBWH may also, in its discretion, suspend a Customer's account at any time with or without reason. Termination or suspension does not release liability for any charges due. SBWH may delete all data, files or other information that is stored on Customer's account upon termination or suspension after reasonable notice.
Use of SBWH's servers and services, and the Internet in general, is at Customer's sole risk, and the use is provided on an "as is," "as available" basis without warranties or guarantees of any kind, either expressed or implied, including implied warranties of merchantability or fitness for a particular purpose, all of which warranties are hereby expressly disclaimed except to the extent any warranty cannot be disclaimed under applicable law.
Under no circumstances shall SBWH be liable for any direct, indirect, incidental, special or consequential damages, including, without limitation, damages for loss of profits, business interruption, loss of business information, and the like, even if SBWH has been advised of the possibility of such damages. The maximum liability of SBWH to any Customer or Customer for any and all loss, claim, damage or liability of any kind, including due to SBWH's negligence, shall be limited to the amount paid by the Customer or Customer to SBWH during the three (3) month period preceding the claim. SBWH does not warrant that its services and systems will be uninterrupted or error free; nor does SBWH make any warranty as to the results or information obtained from use of its services or systems or the Internet in general.
The Customer agrees to indemnify and hold harmless SBWH, its directors, officers, shareholders, agents, employees and its other Customers from any and all claims, liabilities, damages, or expenses, including attorney fees, arising out of or resulting from any and all use of Customer's account whether or not authorized.
The Customer's account and the right to use SBWH's servers may not be transferred, nor resold, without SBWH's consent. Customer agrees to protect its password and account and to keep them secure from unauthorized use.
Electronic mail and other transmissions passing over the Internet and through SBWH's systems are not confidential. Accordingly, SBWH cannot guarantee the protection or privacy of any information of any Customer. For troubleshooting purposes, SBWH may monitor an account at any time. SBWH reserves the right to monitor a Customer's mail and transmissions as a necessary incident to providing services and otherwise to protect the rights or property of SBWH. SBWH will not disclose any such information unless required to do so pursuant to a court order, subpoena, or similar legal request or otherwise on the advice of its legal counsel.
All fees involved with SBWH's Web site hosting are in U.S. currency.
This Agreement represents the complete agreement and understanding between SBWH and the Customer. This Agreement supersedes all other written and oral communications or agreements. A waiver or modification of this Agreement shall only be effective if in writing signed by an authorized employee of SBWH. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Customer hereby consents to the jurisdiction of California courts for all purposes, proper venue in Santa Barbara County.
Force Majeure. In the event of non-performance, partial performance or delay resulting wholly or partly from any Force Majeure or occurrence or circumstance whatever beyond our control, including, but not limited to, the acts or omissions of third parties, labor difficulties, weather conditions, technical breakdown or accident, natural disaster or the act of any authority, then SBWH shall take reasonable steps to continue to provide web hosting services, but otherwise, shall have no liability to the customer.
SBWH, Inc.