Terms and Conditions

Agreement

This agreement is between Totes Digital, Inc. (hereinafter referred to as PROVIDER), and the on-line individual or entity who is applying or utilizing Internet-related Services, (hereinafter referred to as CLIENT). CLIENT agrees to an on-line, subscription service, which will be automatically charged on a recurring basis until the service is explicitly cancelled by either CLIENT or PROVIDER. CLIENT acknowledges that all information provided by CLIENT is true and correct to the best of CLIENT’s knowledge. CLIENT agrees that the act of utilizing PROVIDERS web server or web server space paid for by PROVIDER constitutes acceptance of all terms and conditions associated with the services applied for and that the act of usage shall be in lieu of written signature.

General

AUTHORIZATIONS

CLIENT will use PROVIDER’s services in a manner consistent with all applicable local, state, and federal regulations and laws. CLIENT agrees to pay and authorizes PROVIDER to charge all fees due using the payment information provided by CLIENT at the time of application.

DISCLAIMER.

PROVIDER will not be responsible for any damages suffered by CLIENT. PROVIDER’S service is provided on an “as is, as available” basis. PROVIDER gives no warranty, expressed or implied, for the PROVIDER’s services, including without limitation, any warranty of merchantability or warranty of 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 PROVIDER and its employees. Any damages incurred by CLIENT due to disruption of service by PROVIDER or its providers shall be expressly limited to the fees paid by CLIENT to PROVIDER for services and shall under no circumstances include reimbursement for losses of income or other consequential damages claimed by CLIENT.

INDEMNIFICATION.

CLIENT agrees that it shall defend, indemnify, save and hold PROVIDER harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against PROVIDER, 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. CLIENT agrees to defend, indemnify and hold PROVIDER harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with a PROVIDER server; (2) any material supplied by CLIENT infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement.

PROVIDER expects that its CLIENTS will fully comply with all applicable laws. A customer’s failure to comply with those laws will violate this policy. Finally, PROVIDER wishes to emphasize that in accepting services, CLIENTS indemnify PROVIDER for the violation of any law or PROVIDER policy that results in loss to PROVIDER or the bringing of any claim against PROVIDER. This means, among other things, that if PROVIDER is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against PROVIDER plus costs and reasonable attorneys’ fees.

CLIENT RESPONSIBILITIES.

Effective use of PROVIDER’s services presumes a certain degree of knowledge and skill on the part of the CLIENT. For example, it is presumed that CLIENT possesses at least a rudimentary knowledge of Internet-related processes and software applications such as e-mail, FTP, Telnet, and web-browsing. Creating and publishing a web site on PROVIDER’s servers will require some knowledge of either HTML programming or the use of HTML editors, such as Microsoft FrontPage. Certain advanced applications may require a certain level of competence with CGI/Perl programming applications. In lieu of already-established knowledge and skill levels, patience, a desire and ability to learn, and perhaps a little courage will be required. PROVIDER will not be held responsible for CLIENT’s inability to use PROVIDER’s services due to CLIENT’s lack of the requisite knowledge and skills.

DOMAIN NAME REGISTRATION.

Domain name registration is a separate and independent service from domain and web hosting. CLIENT accepts sole responsibility for monitoring and maintaining the status of CLIENT’s domain name registrations, as well as payment of all applicable domain name registration and renewal fees. PROVIDER does not monitor the registration status of domain names hosted on PROVIDER’s servers. PROVIDER’s services are independent of account usage and domain name records, and remain in effect (and billable) regardless of the status of CLIENT’s domain name record.

PROVIDER will provide reasonable assistance to CLIENT in the area of domain name registration and modification. Reasonable assistance may include submission of registration or modification requests to appropriate domain name registration agencies and/or supplying CLIENT with the necessary information to effect registration or modification of CLIENT domain. PROVIDER will not, under any circumstances, make changes to any part of a domain name record except nameserver and technical contact information relating to the pointing of CLIENT domain name to PROVIDER’s servers.

POSSESSORY LIEN.

PROVIDER maintains a possessory lien on CLIENT’s domain name and files from the date that any associated fees are unpaid and due, including late fees or other charges, and for expenses reasonably incurred in collection of those fees. In the event of the exercise of this lien, release of CLIENT’s domain name and/or files shall be at the sole discretion of PROVIDER.

NOTIFICATIONS.

PROVIDER relies on e-mail as the primary means of notifying CLIENTs of important system news, problems with CLIENTs’ accounts or usage of those accounts, billing problems, etc. Any notifications will be e-mailed to CLIENT domain’s primary e-mail address and/or to the contact e-mail address provided by CLIENT upon application for services. CLIENT agrees to monitor these e-mail addresses on a regular basis and to respond promptly, if required, to any notifications. CLIENT agrees to notify PROVIDER of any changes to CLIENT’s physical or e-mail address, telephone numbers, etc.

POLICY CHANGES.

These policies may change with or without notice. CLIENT agrees to comply with these policies in their current and future state. CLIENT agrees to periodically review published policies to ensure understanding of and compliance with current policies.

REFUSAL OF SERVICE.

PROVIDER reserves the right to refuse or cancel service at PROVIDER’s sole discretion, with or without reason, with or without warning.

ACCEPTANCE.

CLIENT expressly understands, acknowledges, and agrees that in submitting an application and paying for any and all services to be rendered by PROVIDER, CLIENT shall abide by all Terms and Conditions stated herein.

UPTIME DETERMINATION.

CLIENT expressly understands, acknowledges, and agrees that 99% uptime guarantee is over a one year period, from date of signup to anniversary of signup, and HyperSpin third (3rd) party website monitoring is used to determine if website uptime falls below 99% uptime.

JURISDICTION.

CLIENT agrees to submit to the jurisdiction of the applicable municipal, county, state or federal court of PROVIDER’s physical residence for any litigation, mediation, or arbitration which may arise from any dispute concerning any of the provisions herein. Controlling law shall be that of the State of PROVIDER’s residence. The prevailing party in any litigation hereunder shall be entitled to recover its reasonable attorney’s fees and court costs.

ACCEPTABLE USE POLICIES

USER-SUPPLIED CONTENT.

All services may be used for lawful purposes only. Through PROVIDER’s Service, CLIENT may have access to chat areas, bulletin boards, web pages, email, or other services that enable CLIENT to send or post materials (“content”) and make that content available to others. CLIENT must not submit, publish, or display on the Network any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, CLIENT may not submit, publish, or display any content that violates any US Federal, State, or Local law. CLIENT is solely responsible for the content made accessible through the Network. CLIENT may not use the Service to assist any other person or entity to violate any Federal, State, or Local laws, ordinances, or regulations.

PROVIDER is not obligated to monitor the network to examine available content. CLIENT hereby acknowledges that if PROVIDER is made aware of content that is determined to be, in PROVIDER’s sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, PROVIDER has the right, but not the obligation, to edit, remove or deny access to such content. PROVIDER may disclose any content or records concerning CLIENT’s account as required to satisfy any law, regulation, governmental request or court order.

Pornography and sex-related merchandising are prohibited on all servers. This includes sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to PROVIDER’s servers or any other server on the Internet. Links to such materials are also prohibited. In addition, any site selling or promoting bulk e-mail service is not allowed.

USER-SUPPLIED CONTENT.

The following content and activities may not be displayed or promoted by CLIENT nor associated in any way with CLIENT’s account or PROVIDER’s services. PROVIDER shall be the sole arbiter as to what constitutes violation of this provision.

• Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or local law.
• Copyrighted material used without permission.
• Material or activities judged by PROVIDER to be threatening, obscene, disparaging, or hate-related.
• Material protected by trade secret or other statute.
• Pornography, nudity, erotica, and sex-related merchandising, including sites that may infer sexual content, or link to adult content elsewhere.
• Content that promotes any illegal or prohibited activity.
• Content that may be damaging to PROVIDER’s servers or to any other server on the Internet.
• Pirated software (warez).
• Hacking/Phreaking – Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
• IRC, IRC Bots, IRC BNC, etc.
• Promotion or sale of unsolicited or bulk e-mail (SPAM) software or services.
• Unsolicited or bulk e-mail or newsgroup posts (SPAM) which references and/or is traceable to PROVIDER and/or any CLIENT in any way.
• Illegally distributed MP3 media.
• Harassing, annoying, or otherwise interfering with any person’s, group’s, or organization’s use or enjoyment of the Internet experience.
• Links or reference to any of the above.

COPYRIGHT INFRINGEMENT

It is PROVIDER’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If we remove or disable access to comply with the Digital Millennium Copyright Act, we will make a good-faith attempt to contact the owner or administrator of each affected site so that they may make a counter notification pursuant to sections 512(g)(2) and (3) of that Act.

NETWORK SECURITY

CLIENT may not use PROVIDER’s Network in an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the CLIENT, logging into a server or account the CLIENT is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization’s security policy. CLIENT may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. PROVIDER will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.

CGI/PERL APPLICATIONS.

Each account comes with its own cgi-bin. CLIENT is free to use any CGI script desired; however PROVIDER reserves the right to disable any CGI script that adversely affects normal server performance or network integrity. CGI-script sharing with domains not hosted by PROVIDER is not allowed

CRON ACCESS.

Cron access may be enabled on a case-by-case review basis. Cron jobs shall be limited to one per day, and must be scheduled to run between midnight and 5 a.m. To request crontab access, e-mail support with a description of the application you wish to run.

BACKGROUND RUNNING APPLICATIONS.

Background daemons in general are prohibited. PROVIDER will consider requests to allow these applications on a case-by-case review basis. If allowed, extra charges will be assessed based on resources and system maintenance needed.

SERVER RESOURCES

Any web site that uses a high amount of server resources (such as, but not limited to CPU time, memory usage, and network resources) will be given an option of either upgrading their service level or reducing the resource used to an acceptable level.

INTERNET RELAY CHAT (IRC).

IRC, IRC bots, BNC, or MUDs may not be operated on PROVIDER’s servers.

UNSOLICITED E-MAIL (SPAM).

PROVIDER’s servers may not be the source, intermediary, or destination address involved in the transmission of unsolicited bulk e-mail (UBE), unsolicited commercial e-mail (UCE), spam, off-topic newsgroup posts, flames, or mail bombs. CLIENT’s domain may not be referenced or traceable in any way as a result of any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of PROVIDER’s network or equipment. PROVIDER reserves the right to refuse and/or cancel service to known spammers. PROVIDER reserves the sole right to determine what constitutes violation of this provision.

SPAM is any unsolicited e-mail, post, or facsimile in the newsgroup, e-mail, fax, or other electronic medium. Any unsolicited commercial email (no matter how relevant or important it may be) is spam; any unsolicited bulk email (commercial or not) is also spam. Mass and unsolicited are not concurrent conditions for spam. One and/or the other is sufficient. In the medium of newsgroups, spam is considered to be any off-topic posting and/or any identical posting to multiple newsgroups. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one’s e-mail address accessible to the public shall not constitute a request or invitation to receive messages.

Any spam complaints received about CLIENT domains are addressed seriously. After investigation, if it is deemed by PROVIDER that spamming practices have indeed been utilized on PROVIDER’s servers, PROVIDER reserves the right to terminate a domain account immediately with no refund and to assess a $250 penalty per spam incident. CLIENT expressly accepts PROVIDER’s right to assess this penalty and agrees to its assessment and payment.

SERVER ABUSE.

Any attempts to undermine or cause harm to any server is strictly prohibited. This includes, but is not limited to attempting to gain access to password files other than your own, attempting to gain unauthorized access to other accounts on your server, or anything that causes server malfunction. Failure to comply is subject to immediate account deactivation without refund.

Please note that while CGI/PERL scripts and/or mSQL/mySQL code can unintentionally cause server malfunction, PROVIDER will make the final determination if the code was maliciously programmed. If the code was programmed incorrectly but not out of apparently malicious intent, PROVIDER will disable the program, but not cancel CLIENT’s account.

TRAFFIC OVERAGES.

PROVIDER will make every reasonable effort to notify CLIENT of projected traffic overages prior to any action being taken to disable CLIENT’s account. However, PROVIDER reserves the right to disable CLIENT’s account without prior warning due to traffic in excess of the account allocation. In some cases, “unusual” traffic patterns will cause an automatic disablement of CLIENT’s account without warning.

Bandwidth usage is calculated weekly around midnight on Monday morning. A monthly projection is calculated at that time based upon month-to-date actual usage. If the projection exceeds the account allocation, an e-mail warning is sent to the CLIENT. If actual bandwidth usage exceeds the allocation, the account is automatically disabled; the CLIENT is notified via e-mail of the disablement, and is given the option of purchasing additional bandwidth to re-enable the account. CLIENT is not automatically charged for excess bandwidth usage without agreeing to the charges in advance. However, payment for excess bandwidth usage will be required before the account can be re-enabled.

CANCELLATION POLICY

CANCELLATION

CLIENT bears all responsibility for ensuring effective cancellation of CLIENT account. This responsibility includes providing effective and authenticated notification to PROVIDER of CLIENT’s desire to cancel an account. This responsibility shall not be waived or modified by PROVIDER or CLIENT in any way at any time subsequent to the submission by CLIENT of an cancellation notice for PROVIDER account. PROVIDER will act immediately to implement CLIENT’s cancellation notice, providing the terms of this cancellation policy have been followed. PROVIDER is not required to provide client with a prorated refund of services paid. CLIENT is required to pay PROVIDER for services rendered.

OWNERSHIP POLICY

OWNERSHIP

PROVIDER maintains control and ownership of any and all IP numbers and addresses that may be assigned to CLIENT and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. CLIENT shall keep the rights of ownership and use of CLIENT’s domain name registration and files even if client changes providers, with the following exception: PROVIDER maintains a possessory lien on CLIENT’s domain name and files from the date that associated fees are unpaid and due, including late fees or other charges, and for expenses reasonably incurred in collection of those fees. In the event of the exercise of this lien, release of CLIENT’s domain name and/or files shall be at the sole discretion of PROVIDER.

In case of disputes regarding authority over domain names, PROVIDER will follow industry standard practice of giving ultimate authority to the domain name registrant. PROVIDER maintains control and ownership of any copyright, proprietary and/or licensed software, scripts, programs, images, or other electronic data or media installed and/or provided by PROVIDER.

BILLING & PAYMENT

PAYMENT

PROVIDER maintains control and ownership of any and all IP numbers and addresses that may be assigned to CLIENT and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. CLIENT shall keep the rights of ownership and use of CLIENT’s domain name registration and files even if client changes providers, with the following exception: PROVIDER maintains a possessory lien on CLIENT’s domain name and files from the date that associated fees are unpaid and due, including late fees or other charges, and for expenses reasonably incurred in collection of those fees. In the event of the exercise of this lien, release of CLIENT’s domain name and/or files shall be at the sole discretion of PROVIDER.

PAST DUE ACCOUNTS

If payment is not received by the due date, PROVIDER will send at least 1 notification via e-mail to CLIENT’s primary contact e-mail address. If CLIENT does not respond to that notification, the following actions will be taken:

ACCOUNT SUSPENSION: DUE DATE + 3 DAYS

If CLIENT’s account is not paid in full by the 3rd day after the due date, CLIENT’s account will be disabled — all web, e-mail, FTP, and other access to the account will be non-functional. The account will be reactivated within 72 hours of the disablement, upon receipt of payment plus a $25.00 account reactivation fee.

ACCOUNT CANCELLATION: HOSTING PERIOD START DATE

If payment is not received by the hosting period start date, the account will be queued for automatic cancellation and deletion.

ACCOUNT REACTIVATION AFTER CANCELLATION

Once an account has been placed in the cancellation queue, it must remain disabled for at least 36 hours. After 36 hours, but before 7 days, CLIENT may request reactivation of the account by paying the account balance plus a $75.00 account restoral fee.

After 7 days, the account is “officially” cancelled and all files associated with the account are permanently removed from the servers. At this point, the account cannot be reactivated, but CLIENT can request a “new” account for the domain. If necessary, files may be restored from tape backups and placed on the new account within 30 days of cancellation for the normal backup restoral fee.

VENUE

For any action involving matters of this Agreement, venue shall lie in Dauphin County, Pennsylvania.