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Service Contract

TheOpenHost Service Contract:
Where the content states: “We” or “Us” or “Our” includes TheOpenHost or any party acting on TheOpenHost’s implicit instructions. “You” or “Your” or “Reseller” or “client” or “customer” includes the person purchasing the services and/or any party acting on the customer’s instructions. “Member” includes the purchaser of services and/or any party acting on the purchaser’s instructions. “The Registrant” includes the person applying for a domain name or any party acting on the Registrant’s instructions. “The Registry” refers to the relevant domain names Registry. “Server” means the computer server equipment in connection with the provision of the Services. “Web Site” means the area on the Server allocated by us to you for use by you as a site on the Internet. “TOS” includes this agreement. TheOpenHost reserves the right to modify this policy at any time, effective immediately upon posting of the modification to this URL: http://www.TheOpenHost.com/tos.htm. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement. By using any portion of TheOpenHost’s service, you are agreeing to this service agreement on this document entirely.

This document is the contract between You and TheOpenHost.

Section 1 – Use of Services

1.1 TheOpenHost agrees to provide the services as set out and described on our website to you upon successful written acceptance of your order. The date of acceptance shall be referred to as Acceptance Date.
1.1a Should the services described on our website change after your Acceptance Date, TheOpenHost is not obligated to modify Your services to reflect the changes.

1.2 You will only have the right to use the services provided to You upon acceptance of your order and will have no ownership of the facilities, software and/or hardware utilised to provision Your purchased services.

1.3 TheOpenHost reserves the right to decline Your order and to refuse to provide services to You, either in part or as a whole.

1.4 You are the only person authorized to access the services provisioned to you by TheOpenHost. It is your duty & responsibility to ensure any login details and credentials provided to you are kept safe and secure.
1.4a If You delegate access of Your account to a 3rd party, You agree to accept full responsibility and liability of the actions of the 3rd party through indirect or direct use of Our services and indemnify Us against any claims and liabilities.

1.5 Excessive resource usage is any executable code and/or process that consumes Our resources in such a way that may, has the potential or is having an adverse effect to the degree that Your usage compromises Our ability to provision and sustain the services We provide.
1.5a TheOpenHost reserves the right to impose limits & restrictions on how much of any aspect of Our services is being utilised by You.
1.5b TheOpenHost reserves the right to de-activate any part of Your services without notice if it deems it has the potential to contravene condition 1.5 set out in this Contract.

1.6 TheOpenHost prohibits the storage and transmission of (including both inbound and outbound) of pornography with the exception of softcore erotic art and adult oriented e-commerce stores that deliver primarily physcial goods.
1.6a TheOpenHost prohibits the use of Our services to be used for any adult oriented membership based service.

1.7 TheOpenHost prohibits the use of Our services for the storage and transmission (including both inbound and outbound) of any Copyright media, applications and proprietary computer information for which You do not have the permission to distribute and use from the Copyright holder.

1.8 Copyright software, Warez, destructive applications, copyright media, proprietary computer information and hacking & cracking sites are strictly prohibited on any portion of our services and network. Customers storing & transmitting (inbound and outbound) files that violate copyright or other federal laws are grounds for instant termination of service.

1.9 Services intended or that have the potential to Use Our services as a proxy is prohibited

1.10 Email abuse – Unsolicited Commercial Email [‘Spam’] is implicitly forbidden. This is considered server abuse and is grounds for immediate termination.

1.11 Trafficking of illegal content – in the same way that storing illegal content on your account is banned, likewise is the utilization of your account to traffic illegal content, by any means or method, it must not reside on nor pass through a TheOpenHost servers.

1.12 IRC sessions – Using TheOpenHost Hosting servers to run an Internet Relay Chat [IRC] session is grounds for immediate termination. This includes the use of BNC and other redirection servers to indicate a source address on any TheOpenHost Hosting server. Running IRC from our servers makes them targets for attack. Don’t run IRC sessions, IRC bots, IRC servers or IRC proxies. IRCs, Chat Rooms, MUDs, etc. Also software used in the maintaining of an IRC connection (daemons), ‘bouncers’, ‘eggdrops’ and the like are strictly prohibited.We will give no warning before terminating this activity and the account responsible.

1.13 Hacking / Denial of Service – Network activity that constitutes an attack on any internet host from an TheOpenHost service is grounds for immediate termination.

1.14 TheOpenHost prohibits any portion of its services to be resold without charge. This includes but not limited to: entire hosting accounts, email services, scripts, FTP accounts, MySQL databases, applications, licenses, webspace and bandwidth (this includes image hosting and file/data hosting services, either free or subscription/fee based).
1.14a TheOpenHost prohibits the use of any portion of our systems to be used primarily to serve file download services and/or as a backup purpose.

1.15 Any reselling of TheOpenHost services is prohibited unless clearly stated otherwise. Portions of a cPanel shared account may not be resold under any circumstances. Only resources in WebHostManager may be resold under a reseller agreement (i.e. with the purchase of a reseller package).

1.16 TheOpenHost backs up data for its own use and disaster recovery. The customer is encouraged to make their own backups. Customers may request 1 free restore per month. TheOpenHost makes it backups to an offsite location. We do not make any guarantees on the integrity and reliability of the backups.

1.17 You agree that you take full responsibility and liability for any data that is uploaded to your account and any usage of your account.
1.17a You agree to indemnify TheOpenHost against all losses and liabilities incurred by TheOpenHost in the event you use your account in way that have an adverse effect on your customers and which results in a claim against Us.

1.18 You agree to use Your account in such a way that it does not violate any laws in the country You are in at the time of using the account.
1.18a You agree to use Your account in such a way that it does not violate any laws in the state of California, USA and US Federal laws
1.18b You agree to use Your account in such a way that it does not violate any laws in the United Kingdom.
1.18c You agree to take full responsibility and liability for the usage of Your account either by You or anybody else.

1.19 You agree not to use any aspect of Your account primarily for storage and/or backup purposes.
1.19a It is prohibited to run bitcoin mining software on any part of the TheOpenHost network
1.20 Any reselling of TheOpenHost services is prohibited unless clearly stated otherwise. Portions of a cPanel shared account may not be resold under any circumstances. Only resources in WebHostManager may be resold under a reseller agreement (i.e. with the purchase of a reseller package).

1.21 TheOpenHost prohibits any portion of its services to be resold without charge. This includes but not limited to: entire hosting accounts, email services, scripts, FTP accounts, MySQL databases, applications, licenses, webspace and bandwidth (this includes image hosting and file/data hosting services, either free or subscription/fee based).

1.22 We make no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk.

1.23 The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them. You shall have no right to bring any claim against us in respect of refusal to register a domain name. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.

1.24 We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.

1.25 We shall not release any domain to another provider unless full payment for that domain has been received by us.

1.26 TheOpenHost reserves the right to revoke or refuse an SSL certificate with or without prior notice

1.27 TheOpenHost reserves the right to provide the customer with another equivalent SSL certificate should the advertise one not be available

1.28 TheOpenHost provides no warranties or guarantees on the nature and functionality of the certificates.

1.29 TheOpenHost does not provide technical support for SSL certficates apart from installing it for you.

1.30 SSL certificates issued free of charge because it was part of your package can be used on either TheOpenHost servers or another website not hosted by us. The choice is up to the customer. The SSL cert will be revoked if the hosting account is canceled unless the customer begins paying for the certificate at our advertised prices.

1.31 SSL Certificates & Free domains can only be received after successful payment and after our 16 day money back guarantee period has ended.

Section 2 – Promotions

2.1 Only one promotion can be used when ordering. Multiple promotions cannot be combined together and used together. Only one promotion per paying account. TheOpenHost reserves the right to refuse a promotion to a customer.

2.2 TheOpenHost reserves the right to revoke a promotion already being used or a new promotion introduced with or without prior notice

2.3 TheOpenHost reserves the right to reduce the advertised time of the promotion running time with or without prior notice

2.4 Promotions unless stated otherwise are for new customers only.
2.4a If You cancel and sign up again within a 45 day period You will lose all privileges of using a promotion and no promotion shall be applied to any account that You order
2.4b If You purchase an additional account that is using a promotion and transfer files from an existing TheOpenHost account to one that is using a new or different promotion then You must keep both accounts active and in good standing to keep the promotions active. If the first account is cancelled, all promotions will be revoked from Your account.
2.4c Any attempts to circumvent the spirit in which a promotion was intended for and its target audience will result in all promotions being revoked from Your account.

2.5 If You sign up using a promotion then the 16 day money back guarantee will no longer apply to You

Section 3 – Payment, Refunds, Cancellations and Guarantees

3.1 All web hosting and reseller accounts come with a conditional 16 day money back guarantee. You agree and understand the usage of Your account or request of any promotional items may affect the total refundable amount.
3.1a The following fees are deducted from the total refundable amount. Requesting any of the below items (even if they are not used) will result in the following deductions:

WHMCS: $7 deduction
SSL Certificate: $10 deduction
Domain Reseller: $1 deduction
Knowledgebase Articles: $10 deduction
End User Support: $5 deduction
Legal document templates: $10 deduction
Website templates: $10 deduction

If you have requested or used any of the above services, they will not be refunded as part of the 16 day money back guarantee and thus considered as chargeable items.
3.1b Virtual Private Servers, licenses, dedicated servers, dedicated IP’s, cloud servers, management services, custom administration work, late fees, administration fees and billable out of scope support work are all excluded from the 16 day money back guarantee.
3.1c If you have previously signed up with TheOpenHost and have used the 16 day money back guarantee and you sign up again at any point in the future for any service then the 16 day money back guarantee will not apply to You.
3.1d If you have violated any part of this agreement then you will not be entitled to the 16 day money back guarantee
3.1e If you have paid yearly for your account but cancel while having unused months not yet paid for, the remaining unused amounts will not be refunded. Customers have 16 days to request a refund regardless of how many days, weeks, months or years you have paid for.
3.1f Once 16 days have passed since the date you signed up, you can no longer use the 16 day money back guarantee

3.2 You can only cancel Your account by opening a support ticket with Our billing department at https://support.TheOpenHost.com specifying Your main account domain, one of your last 3 invoice numbers and date of birth of the account holder.
3.2a If You do not cancel your account using the procedure set out in section 3.2 of this agreement then Your account will not be cancelled and will continue to accumulate invoices and usage charges
3.2c Accounts that have invoice that are either due or overdue or both cannot be cancelled until all outstanding debts have been settled
3.2d Cancellation requests must be sent at least 3 days before the invoice becomes due.
3.2e Cancellation requests that are not received at least 3 days before the invoice is due will not take effect until the subsequent month and as such You will be charged a full additional month.
3.2f If you request cancellation of Your account and request that the cancellation take effect immediately, You will not be refunded for any unused portions of the period that You have paid for

3.3 If your account accumulates a debt, TheOpenHost may at its own discretion pass Your details to a 3rd party debt collection company or may sell your debt to a 3rd party.
3.3a If your account is passed to a debt collection company or the debt is sold, a fee of up to $150 may be applied.

3.4 TheOpenHost will not provide any support and/or assistance to You if You have overdue bills.

3.5 TheOpenHost reserves the right to impose a 35% late fee of the total invoice value or $5.00 (whichever is greater) for any invoice that becomes overdue

3.6 An invoice is considered overdue when 24hrs or more has passed since the due date listed on the invoice.

3.7 If You pay by PayPal, you are responsible for ensuring the correct payment is sent to us and at the right time. You are also responsible for ensuring that you successfully submit payment.
3.7b Overpayments as a result of a PayPal subscription that has not been cancelled can only be refunded if the payments are not more than 45 days old.
3.7c Overpayments that are over 45 days old will be added as account credit
3.7d Overpayments will be subject to a 5% administration fee of the total over payment value
3.8 Funds added as account credit are not refundable
3.8a Funds added to the domain reseller are not refundable.
3.9 If you are using our domain reseller account services, and cancel your account, the domain reseller account will be suspended and any funds loaded in the domain reseller will be forfeited. Any domains in the domain reseller will also be forfeited. The customer is thus responsible for transferring any domains away from our domain reseller before terminating an account with us.

3.10 If you have a credit card on file, you authorise TheOpenHost to automatically charge the card upon due date.
3.10a If you have a credit card on file, but your primary method of payment is not credit card, and your account is overdue, you authorise TheOpenHost to charge the credit card it has on file.

3.11 TheOpenHost guarantees that the HTTP service for Web Hosting and Reseller Hosting customers will be available 99.9% of the time. TheOpenHost guarantees a 99.9% network uptime guarantee for Virtual Private Servers and Dedicated Servers. No other service has any guarantee.
3.11a TheOpenHost has the final say on the uptime of any service
3.11b If you use a 3rd party monitoring tool, the statistics of that tool will not be taken into account nor considered valid for any uptime guarantee claim
3.12 If we fail to maintain uptime as per section 3.11, then you are entitled to the following compensation which will be applied as account credit and has no cash value:
3.12a For Web Hosting and Reseller Hosting customers the following crediting schedule applies:
99.5 – 99.89 = 70% service credit
99.0 – 99.49 = 80% service credit
98 – 99 = 90% service credit
97.99 – 95.00 = 100% service credit
3.12b For Virtual Private Server and Dedicated Server customers, the following crediting schedule will be apply for the network uptime guarantee:
99.5 – 99.89 = 10% service credit
99.0 – 99.49 = 20% service credit
98 – 99 = 30% service credit
97.99 – 95.00 = 40% service credit
94.99% and below = You will be credited by calculating Your payment for the service in its daily equivalent and receive 90% credit of the daily equivalent for any additional day that results in network downtime after 95% downtime.

3.12c The maximum amount of credit that will be applied is 100% of the equivalent monthly payment for that service and excludes licenses, IP address and management services.

3.12d Network interruption as a result of a denial of service attack are excluded from the uptime guarantee

3.13 Customers claiming credit under our uptime guarantee must do so by opening a ticket within 72 hours of the incident with their username, main account domain and PayPal subscription ID or latest order number if you are paying by credit card. All requests after 72 hours of the downtime incident happening will be void.
3.13a TheOpenHost has the final say and will determine the uptime of our servers and will base its uptime on our own monitoring systems. External monitoring statistics set up by customers will not be considered as evidence of uptime/dowtime.
3.14 You agree and understand that your monthly billing amount can vary based on your usage and products/services you have subscribed to.
3.14a Unless You request otherwise and where using a supported payment method, TheOpenHost will charge you automatically for your usage on the due date stated on the invoices that we send to you in advance.
3.14b TheOpenHost will not charge you any amount without first informing you of the amount to be charged and the day it will be charged to the email address you have provided to us. TheOpenHost will inform you at least 10 days before you due date of any charges that will be due on the due date.
3.14c If using PayPal Reference Transactions (also known as PayPal Billing Agreements) you can cancel your billing agreement in your PayPal Profile by logging into your PayPal account or by clicking on the “PayPal Billing Agreement” link in your client portal at https://client.TheOpenHost.com (requires login). Alternatively, you may contact TheOpenHost support at https://support.TheOpenHost.com requesting cancellation of your billing agreement.

Section 4 – Reseller, Virtual Private Server and Dedicated Server Customer Liability

4.1 The reseller/VPS customer is liable and responsible for all actions of their account and subaccounts created by the reseller/VPS customer. As the reseller/VPS customer you agree to accept all responsibility and liability for your actions and the actions of your subusers either directly or indirectly.

4.2 Terms of Service violations as a result of a subuser account being exploited with or without knowledge will be the responsibility of the reseller/VPS account holder.

4.2a Resellers & VPS customers are responsible for the content of the accounts they create. If those accounts are hacked/abused, the reseller will be accountable for all costs and liability.

4.3 The reseller & VPS account holder agrees to actively monitor their subaccounts to ensure all subaccounts and their own account are abiding by all of TheOpenHost’s policies and Terms Of Service

4.4 The legal liability and legal responsibility of the subaccounts of the reseller/VPS belongs to the reseller/VPS customer.

4.5 TheOpenHost reserves the right to financially charge the reseller/VPS customer for any contract violation.

4.6 If an IP assigned to a VPS client is blocked and/or blacklisted, TheOpenHost will impose a non-negotiable $100.00 penalty fee payable within 24hrs. TheOpenHost reserves the right to take further action should this bill remain unpaid.

4.7 Resellers are responsible for ensuring that the domain they choose upon sign up is the domain they wish to use. If the reseller requests to have the domain name of the main reseller account changed, a $25.00 one-time admin fee is charged.

Section 5 – End User Support

5.1 If your package includes end-user support, TheOpenHost will only begin the end-user support part of the package once you provided us with your company name, email to send notifications to and desired password. This must be done via ticket.

5.2 TheOpenHost has no guaranteed response time but aims to respond within 24 hours.

5.3 TheOpenHost will be acting on your behalf. Thus you are responsible for the content and nature of the replies TheOpenHost provides.

5.4 TheOpenHost does not provide support desk installation or help with configuration of a support desk. This is the responsibility of the customer.

5.5 Customer must use the helpdesk provided by TheOpenHost in order to use our end-user support service

5.6 TheOpenHost will keep itself anonymous and make every attempt to ensure your customers do not find out about TheOpenHost but we cannot guarantee your customers will not be able to find out about us by themselves.

Section 6 – Support Restrictions

6.1 TheOpenHost does not provide support for 3rd party scripts including all scripts listed in Fantastico, RVSiteBuilder, ClientExec and any other script unless explicitly stated.

6.2 If you open a ticket requesting support for a 3rd party script, your ticket will be reprioritized as low priority and may be closed without an answer.

6.3 The offer of any particular service does not constitute an obligation on TheOpenHost part to tutor the necessary skills to utilize that service, only to provide system-specific information.

6.4 problems with domain names/DNS issues are NOT directly the responsibility of TheOpenHost . DNS is a cooperative system and works solely because the parties involved in running the system agree to cooperate in the furtherance of the DNS/domain system. We will do our best to isolate the source of the problem at hand, however unless this source is hardware directly under the control of TheOpenHost, then the task of acquiring a solution will fall back into your hands. TheOpenHost will advise when requested, but rarely intermediate in domain issues not directly related to the operation of one of our DNS servers.

6.5 TheOpenHost covers free initial migration from your previous host of up to 25 cPanel accounts. This service is limited to cPanel/WHM to cPanel/WHM transfers. We offer basic troubleshooting after account migration to ensure things have been transferred successfully. TheOpenHost does not cover 3rd party script troubleshooting. It is your responsibility to ensure your scripts are compatible with our server environment.

6.6 The same support restrictions also apply to our end-user support

Section 7 – Changes to this Contract

THEOPENHOST reserves the right at any time to modify this Contract and to add new or additional terms or conditions on your use of the TheOpenHost services. Modifications an additional terms and conditions will be effective immediately and incorporated into this contract. Your continued use of any TheOpenHost service will be deemed acceptance thereof.

Section 8 – Miscellaneous

This contract constitutes the entire contract between You and TheOpenHost and governs your use of all TheOpenHost services, superseding any prior agreements between you and TheOpenHost. You also may be subject to additional terms and conditions that may apply when you use any 3rd party service or product supplied to you on behalf of the 3rd party by TheOpenHost. If any part of this contract is held invalid or unenforceable, that portion shall be construed in a manner consistent with the applicable to relfect, as nearly as possible, the original intentions of the parties, and the remaining provisions in this contract shall remain in full force and effect. TheOpenHost’s failure to enforce any right or provisions in this contract will not constitute as a waiver of such or any other provision. TheOpenHost will not be responsible for failures to fulfill any obligations due to causes beyond its control.

Section 9 – Lawful Purpose

TheOpenHost reserves the right to refuse service to anyone. Customers may only use TheOpenHost server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, and material protected by trade secrets. The designation of any materials as such described above is left entirely to the discretion of TheOpenHost Hosting management. Regardless of the place of signing this agreement, the client agrees that for purposes of venue this contract was entered into in United Kingdom, England, and any dispute will be litigated or arbitrated in United Kingdom, Liverpool, England.

Section 10 – Indemnification

YOU AGREE THAT YOU SHALL DEFEND, INDEMNIFY, SAVE AND HOLD THEOPENHOST HARMLESS FROM ANY AND ALL DEMANDS, LIABILITIES, LOSSES, COSTS AND CLAIMS, INCLUDING REASONABLE ATTORNEY’S FEES ASSERTED AGAINST THEOPENHOST, ITS AGENTS, ITS CUSTOMERS, OFFICERS AND EMPLOYEES, THAT MAY ARISE OR RESULT FROM ANY SERVICE PROVIDED OR PERFORMED OR AGREED TO BE PERFORMED OR ANY PRODUCT SOLD BY CUSTOMER, IT’S AGENTS, EMPLOYEES OR ASSIGNS. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THEOPENHOST AGAINST LIABILITIES ARISING OUT OF; (1) ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH A
THEOPENHOST SERVER; (2) ANY MATERIAL SUPPLIED BY CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY; ( 3) COPYRIGHT INFRINGEMENT AND (4) ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM THEOPENHOST SERVER.

Section 11 – Disclaimer

THEOPENHOST WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOUR BUSINESS MAY SUFFER. THEOPENHOST MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE
PROVIDE. THEOPENHOST DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY TheOpenHost AND ITS EMPLOYEES. TheOpenHost RESERVES THE RIGHT TO REVISE ITS POLICIES AT ANY TIME.

THEOPENHOST RESERVES THE RIGHT TO CANCEL/SUSPEND/TERMINATE YOUR ACCOUNT AT ITS OWN DISCRETION WITH OR WITHOUT REASON IF IT FEELS THE ACCOUNT WILL CAUSE DAMAGE TO THE ORGANISATION OR ANY OTHER REASON. TheOpenHost RESERVES THE RIGHT TO ALTER THE SERVICES PROVIDED AT ANY TIME WITH OR WITHOUT NOTICE.

ALL SUB-NETWORKS, RESELLERS AND DEDICATED SERVERS OF THEOPENHOST MUST ADHERE TO THE MENTIONED HERE POLICIES.

FAILURE TO FOLLOW ANY TERM OR CONDITION WILL BE GROUNDS FOR IMMEDIATE ACCOUNT DEACTIVATION.

Section 12 – Intellectual Property

Material accessible to you through TheOpenHost services may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use TheOpenHost or its servers and network in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the TheOpenHost network. If you use a domain name in connection with TheOpenHost or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.

Copyright © 2017 TheOpenHost