This Terms of Service Agreement (“TOS Agreement”) constitutes a valid, binding and enforceable legal contract by and between you, the “Subscriber”, and Paintball Hosting.com, LLC (“PBH”).
1. Provision of Service: Acceptance of this TOS Agreement and Acceptance of
PBH’s Acceptable Use Policy:
PBH’s provision of service to Subscriber, and Subscriber’s acceptance and use of said service, constitute Subscriber’s acceptance of, and agreement to, this TOS Agreement as well as Subscriber’s acceptance of, and agreement to, PBH's Acceptable Use Policy (“PBH’S AUP”) -- which is herewith made a part of this TOS Agreement. This TOS Agreement, including PBH’S AUP, constitutes the entire agreement between the parties, and supersedes any prior agreements between the parties.
2. Cancellation of Service:
PBH reserves the right to cancel this TOS Agreement and to permanently disconnect the service that PBH provides to Subscriber hereunder at anytime without further obligation. Subscriber may cancel this TOS Agreement and the service that PBH provides to Subscriber hereunder by requesting cancellation via opening a help ticket through the helpdesk at http://paintballhosting.com/billing at least fifteen (15) days prior to Subscriber’s next monthly billing date. PBH will not honor notice of cancellation by any other means of communication. Subscriber must be current on all payments and must have all account information available at the time of such request for said requested cancellation to become effective. It is Subscriber’s responsibility to separately confirm that PBH has timely received notice of requested cancellation, and Subscriber must make arrangements to pick up any server computer that it owns for removal from PBH’s facility.
3. Disconnection of Service:
Not by way of limitation of PBH’s right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that PBH provides to Subscriber, PBH also reserves the right to temporarily disconnect (suspend) the service that PBH provides to Subscriber (or any one of them, if Subscriber has more than one account or server):
For Subscriber’s failure to timely pay any fee or amount due to PBH, in which case PBH will first send Subscriber an email indicating that Subscriber’s account is overdue and advising Subscriber that the service that PBH provides to Subscriber may be terminated if payment is not made within 24 hours; and/or
If PBH determines, in its sole judgment, that Subscriber is in violation of this TOS Agreement (which includes PBH’s AUP), and PBH believes that Subscriber can timely and appropriately cure said violation. If, in PBH’s sole discretion, a potential violation is detected, the service (including all services on all server computers of Subscriber, if Subscriber uses more than one) that PBH provides to Subscriber may be terminated, without notice to Subscriber, until PBH’s investigation is complete, which investigation PBH shall attempt to complete within a reasonable time period.
Subscriber will not be credited, under any circumstances, for any time that the service that PBH provides to Subscriber is suspended, interrupted or terminated.
4. PBH Not Obligated To Review Activities or Notify of Violations:
PBH is under no obligation to review Subscriber's and/or any of Subscriber’s Sub-User’s (the term “Subscriber’s Sub-User” is defined below) activities to determine if a violation of this TOS Agreement (which includes PBH’s AUP) has occurred. Further, PBH does not assume any responsibility by virtue of this TOS Agreement (which includes PBH’s AUP) to monitor, enforce or police Internet-related activities or to notify Subscriber of any actual or suspected violations.
5. Amendment:
PBH reserves the right to amend, and may amend, from time to time, within its sole discretion, the terms and conditions of this TOS Agreement (including PBH’s AUP). PBH will provide notice of such amendment(s) by posting such amendment(s) on PBH’s website at http://www.paintballhosting.com/blog , and Subscriber’s use of PBH’s services after PBH posts such amendment(s) on its website shall constitute Subscriber's acceptance of any/all such amendments. Amendment(s) shall not constitute grounds for Subscriber’s early cancellation of this TOS Agreement or the service, nor grounds for Subscriber’s non-payment for the service that PBH provides to Subscriber after the effective date of such amendment(s), and Subscriber shall continue to be bound by the terms and conditions of this TOS Agreement, as amended, for any service provided by PBH to Subscriber thereafter. It is Subscriber’s responsibility to review, from time to time, this TOS Agreement (including PBH’s AUP), as published on PBH’s website, for any amendment(s).
6. Assignment:
Subscriber may not transfer or assign this TOS Agreement without the prior written consent of PBH. PBH may transfer and assign this TOS Agreement, the Service and all of PBH’s rights, titles and interests thereunder at any time without consent from or notice to Subscriber.
7. Waiver:
Waiver by PBH of Subscriber’s breach of any term or condition of this TOS Agreement (including PBH’s AUP) shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other term or condition of this TOS Agreement (including PBH’s AUP).
8. Compliance with law:
Inasmuch as the service that PBH provides to Subscriber is controlled and operated by PBH from its facilities in the United States, Subscriber shall comply with all U.S. local, state, federal and national laws, statutes, ordinances and regulations that apply to Subscriber’s use of the service that PBH provides to Subscriber, as well as with all laws in all other jurisdictions that apply to Subscriber’s use of the service that PBH provides to Subscriber.
9. Choice of Law / Jurisdiction / Venue / Statute of Limitations:
This TOS Agreement shall be construed in all respects in accordance with the laws of the state of Illinois and Indiana applicable to contracts enforceable in those states. By entering into this TOS Agreement and accepting and using PBH’s services hereunder, Subscriber submits to jurisdiction and venue in the courts of Cook County, Illinois, or Grant County, Indiana for any dispute(s) related to or rising out of this TOS Agreement. Notwithstanding any contrary provision of law, any claim or cause of action arising out of this TOS Agreement and/or related to the service that PBH provides, or is to provide, to Subscriber must be filed within three (3) monthes after such claim or cause of action arose or be forever barred.
10. Responsibilities:
Subscriber Shall Defend and Indemnify PBH:
Subscriber shall fully defend, indemnify, pay and hold harmless PBH and its managers, members, employees, affiliates, attorneys, agents, contractors and licensors (such PBH related parties collectively referred to under this Section 10.A. as “PBH-related party”) for any Subscriber violation(s) of this TOS Agreement (which includes PBH’s AUP) and for any violation(s) by a sub-subscriber of, client of, customer of, reseller of, user of, sub-user of, or similar party related to, Subscriber (collectively referred to as a “Subscriber’s Sub-User”), that results in any loss, damage, cost or expense to PBH or an PBH-related party, or in any claim made or threatened against PBH or an PBH-related party by any third-party. If PBH or an PBH-related party is sued (or if a suit is threatened against PBH or an PBH-related party) because of Subscriber's or a Subscriber’s Sub-User’s act or omission, Subscriber shall pay any and all damages awarded against PBH and any PBH-related party immediately upon such award (whether or not any appeal is available/taken), plus any and all of PBH’s and any PBH-related party’s expenses and costs (including PBH’s and any PBH-related party’s reasonable attorneys’ fees) related thereto;
PBH Not Liable:
The service that PBH provides to, or is to provide to, Subscriber is provided on an “as is” and “as available” basis, and Subscriber’s use of said service is at Subscriber’s sole risk. In no case shall PBH or any of its managers, members, employees, affiliates, attorneys, agents, contractors or licensors be liable for any direct, indirect, incidental, punitive, exemplary, special or consequential damages, losses, costs or expenses, including, but not limited to, loss of profits, loss of data, loss or damage to goodwill, or loss of use of data or other intangible losses, or for any claim(s) related thereto, even if said party has been advised of the possibility of such damages, losses, costs, expenses or claims, arising from or related to:
Subscriber’s or Subscriber’s Sub-Users’ use or inability to use the service (whether from Service Faults or otherwise) that PBH provides to, or is to provide to, Subscriber;
Any destruction, damage, taking, unavailability or other loss of Subscriber’s or any Subscriber’s Sub-User’s system, server or data;
The cost to procure any substitute service;
Any unauthorized access or use of Subscriber’s account; or
Any third party conduct or other matter relating to the service;
Content Responsibility:
PBH takes no responsibility or accountability for, and Subscriber is entirely responsible and accountable for, any and all Subscriber and third-party data, information and content transmitted by (via email, uploading, posting or otherwise), stored on, inputted to/through, linked to/through and/or served by, Subscriber’s server computer (or any server computer internally assigned to Subscriber) at PBH’s premises and/or using the service that PBH provides to Subscriber;
Subscriber’s Responsibility to Enforce:
It is Subscriber’s responsibility to ensure that Subscriber and all of Subscriber’s Sub-Users continuously adhere to the terms and conditions contained in this TOS Agreement (including PBH’s AUP), and Subscriber is, and will be held, responsible for Subscriber’s acts and omissions and for the acts and omissions of Subscriber’s Sub-Users related thereto. It is in Subscriber’s best interest to implement a similar policy of acceptable use and compliance among Subscriber’s Sub-Users;
Subscriber’s Network / Security:
Subscriber is solely responsible for ensuring that its network and the network(s) of Subscriber’s Sub-User(s) are configured in a secure manner. Subscriber is solely responsible for any intrusions into, or security breaches of, any of its server computers, networks or systems. Subscriber is solely responsible and accountable for, and PBH shall not be responsible or accountable for, any/all activities that occur on or through Subscriber’s service computers, networks and systems, including any and all acts or omissions by, or attributable to, any third party, using the service that PBH provides to Subscriber;
Subscriber’s Responsibility to Backup System/Data – Deletion of System/Data:
PBH is not responsible for, and Subscriber is solely responsible for, backing up Subscriber’s system/data, including any/all system/data of any Subscriber’s Sub-User, related to Subscriber’s server computer (or any server computer internally assigned to Subscriber) at PBH’s premises and/or to the service that PBH provides to Subscriber. Any server computer owned by Subscriber on PBH’s premises or otherwise under PBH’s possession or control will be considered abandoned and forfeited 15 (15) days after cancellation of this TOS Agreement for non-payment, at which time, PBH will delete any and all Subscriber and Subscriber’s Sub-User system/data. For any server computer not owned by Subscriber but that is or may be internally assigned to Subscriber, PBH will delete any and all Subscriber and Subscriber’s Sub-User system/data immediately upon cancellation of this TOS Agreement for non-payment.;
Subscriber’s Responsibility To Insure:
PBH is not responsible for, and Subscriber is solely responsible for, fully insuring Subscriber’s and Subscriber’s Sub-Users’ system/data against destruction, damage, taking, unavailability or other loss, and PBH is not responsible for, and Subscriber is solely responsible for, fully insuring any/all server computers, components and equipment owned or controlled by Subscriber against loss and damage during shipment, handling, placement and use, whether said server computer/equipment is in PBH’s possession or control or otherwise;
Subscriber’s Responsibility For Server/Equipment:
Subscriber is solely responsible for packaging and removing from PBH’s premises/control any/all servers and equipment owned or controlled by Subscriber. Subscriber shall pay PBH a $30.00 handling fee plus all shipping costs per package for any server/equipment which is shipped The Subscriber is responsible for insuring any/all shipments. Any server or equipment not removed within 15 days after cancellation of this TOS Agreement for any reason will be considered abandoned and forfeited.
11. Subscriber Contact Information, Updates & ID:
Subscriber shall, at http://paintballhosting.com/billing , provide PBH with, and shall update PBH immediately upon any change(s) with, accurate, current and complete contact information (including email, fax, telephone and street address contacts) so that PBH may register Subscriber, charge payments to Subscriber and otherwise contact Subscriber as may be required from time to time in the course of this TOS Agreement. In addition, Subscriber agrees to provide photo identification to PBH prior to Subscriber’s preliminary visit, if any, to PBH’s data center.
12. Age/ Legal Authority:
If Subscriber is an individual, Subscriber must be eighteen (18) years of age or older in order to enter into this TOS Agreement to subscribe to the service that PBH provides to Subscriber, and Subscriber herewith assures PBH that Subscriber meets said age requirement. If Subscriber is an entity, Subscriber herewith assures PBH that it has all the legal authority necessary to enter into this TOS Agreement to subscribe to the service PBH provides to Subscriber.
13. Payment Information:
Service Rates:
The nature of the service that PBH provides to Subscriber, and the rates and fees thereof, have been communicated to Subscriber by PBH. PBH may amend its rates and fees from time to time, at PBH’s discretion, by posting said change(s) on PBH’s website at http://www.paintballhosting.com/dedicated.html/, which rate change shall become effective as outlined in said posting;
Payment:
PBH may charge Subscriber a one-time, pre-agreed set-up fee before PBH establishes any service for Subscriber. Subscriber shall thereafter pay, on each monthly anniversary date thereafter, an ongoing service charge in advance for PBH’s continued provision of the service that PBH provides to Subscriber. Subscriber agrees that PBH may automatically charge Subscriber’s credit card each month, and may process Subscriber’s payment as early as ten (10) days before the due date, to ensure that PBH receives payment on or before the due date;
Invoicing:
PBH does not send out invoices automatically. If Subscriber requires an invoice he may log into his account and obtain an invoice.
Refunds and Disputes:
All payments made to PBH by Subscriber or on Subscriber’s behalf are nonrefundable – including the one-time set-up fee, if any, as well as any/all subsequent monthly charges (regardless of usage). Overcharges or billing disputes must be reported to PBH within 15 (15) days of occurrence, otherwise Subscriber shall have waived all claims related thereto. If Subscriber disputes a charge to its credit card issuer, which charge PBH deems, in its sole discretion, to be valid under the terms and conditions of this TOS Agreement, Subscriber shall pay PBH, in addition to said disputed charge, an Administrative Fee of not less than $50.00 and not more than $150.00;
Payment Declination/Rejection Charge:
Should Subscriber’s credit card or any payment be declined or rejected for any reason, PBH may charge Subscriber a $25.00 administrative fee per occurrence;
Additional Charges for Failure to Timely Pay:
Without limiting PBH’s right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that PBH provides to Subscriber, should PBH suspend the service that PBH provides to Subscriber because of Subscriber’s failure to timely pay any fee or amount due to PBH, Subscriber may be required to pay PBH, in addition to any fees and amounts due a $25.00 late fee. Suspension of service does not relieve Subscriber of any responsibilities.
14. Rates / Charges / Service Plans:
1Gbit Un-metered Service Plan:
Each server is connected via private (non-shared) 1Gbit port to the PBH 101 Gbit backbone shared by all servers subscribed to PBH’s un-metered service plans. The bandwidth is NOT dedicated. Servers on the 1Gbit un-metered service plan can expect average 30000GB-50000GB/month throughput on outbound transfer (from the server to the internet) and up to 300TB/month throughput on inbound transfer (from the internet to the server);
100Mbit Un-metered Service Plan:
Each server is connected via private (non-shared) 100Mbit port to the PBH 101 Gbit backbone shared by all servers subscribed to PBH’s un-metered service plans. The bandwidth is NOT dedicated. Servers on the 100Mbit un-metered service plan can expect average 10TB/month (10000GB/month) throughput on outbound transfer (from the server to the internet) and up to 30TB/month throughput on inbound transfer (from the internet to the server);
5Mbit Un-metered Service Plan:
Each server is connected via private (non-shared) 5Mbit port to the PBH 101 Gbit backbone shared by all servers subscribed to PBH’s un-metered service plans. The bandwidth is NOT dedicated. Servers on the 5Mbit un-metered plan can expect average 1000GB-1500GB/month throughput on outbound transfer (from the server to the internet) and up to 30TB/month throughput on inbound transfer (from the internet to the server);
Dedicated Bandwidth:
Dedicated bandwidth, if not over-subscribed, is available at $10-$20/month/Mbit depending on commitment.
15. Un-metered and Burstable Bandwidth Usage:
PBH will pro-actively monitor Subscriber's bandwidth/ backbone usage to ensure that bandwidth resources are shared equally among all PBH subscribers. PBH reserves the right to take corrective action if a plan Subscriber's usage adversely impacts other subscribers or the network. PBH will never charge any overage fees regardless of Subscriber's bandwidth usage. However continuous bursting for several hours a day at the same time of day repeatedly may be considered abusive. PBH may adjust Subscriber's port so the bandwidth usage reflects the expected usage described Paragraph 14 A. B. C & D. above.
16. Service and Support:
Support & Support Boundaries:
Within PBH’s field of service and ability, PBH offers 24 hours/day x 7 days/week technical support to Subscriber, except during a few holidays and company meetings when we temporarily close our facility. Subscriber’s server computer(s) housed at PBH’s facility is(are) unmanaged, and PBH offers only that the service provided by PBH to Subscriber’s server computer(s) is online and remotely accessible. PBH does not offer technical support for application-specific issues, and PBH shall not provide technical support to Subscriber’s Sub-Users. Subscriber should contact PBH by opening a help ticket with the support desk for technical assistance at http://paintballhosting.com/billing . In the event PBH needs to ship out of PBH’s premises any failed component of a server owned or controlled by Subscriber for any reason, a $25.00 handling fee per shipment plus all shipping costs will be applied;
Service Faults / No PBH Liability / No Warranty:
PBH does not guarantee that the service that PBH provides, or is to provide, to Subscriber is or will be free from errors, omissions, corruption, attack, viruses, interference, loss, hacking, security intrusion, delays, non-delivery, wrong delivery or any other causes of interruption or damage (collectively “Service Faults”). As a reminder of, and not as a limitation of, PBH’s limitation of liability under Section 10.B. above, in no case shall PBH or any of its managers, members, employees, affiliates, attorneys, agents, contractors or licensors be liable for any direct, indirect, incidental, punitive, exemplary, special or consequential damages, losses, costs or expenses, including, but not limited to, loss of profits, loss of data, loss or damage to goodwill, or loss of use of data or other intangible losses, or for any claim(s) related thereto, even if said party has been advised of the possibility of such damages, losses, costs, expenses or claims, arising from or related to the following:
i) Subscriber’s or Subscriber’s Sub-Users’ use or inability to use the service (whether from Service Faults or otherwise) that PBH provides to, or is to provide to, Subscriber,
ii) Any destruction, damage, taking, unavailability or other loss of Subscriber’s or any Subscriber’s Sub-User’s system, server or data,
iii) The cost to procure any substitute service,
iv) Any unauthorized access or use of Subscriber’s account or
v) Any third-party conduct or other matter relating to the service. .
PBH AND ITS MANAGERS, MEMBERS, EMPLOYEES, AFFILIATES, ATTORNEYS, AGENTS, CONTRACTORS AND LICENSORS HEREWITH EXPRESSLY DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NO REQUEST OR ADVICE FROM SUBSCRIBER TO PBH, IN ANY FORM OF MEDIA, SHALL CREATE ANY WARRANTY.
SUBSCRIBER IS SOLELY REPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S NETWORK AND SYSTEM AND FOR ANY LOSSES THAT RESULT FROM SUBSCRIBER’S USE OF, OR INABILITY TO USE, THE SERVICE THAT PBH PROVIDES, OR IS TO PROVIDE, TO SUBSCRIBER;
Facility Access:
Visits to PBH’s facility must be scheduled at least twenty-four (24) hours prior to the visit. Should Subscriber need emergency access to Subscriber’s server computer, Subscriber must contact PBH technical support and request access at least fifteen (15) minutes prior to the emergency visit. Subscriber shall pay any/all related charges (such as for a security pass, property pass, time and assistance provided by PBH, etc.). and Subscriber shall submit a photo ID for PBH’s records prior to Subscriber’s initial visit to PBH’s facility. Guided tours for prospective clients (non-subscribers) are permitted, at the sole discretion of PBH, only during regular business hours, Monday-Friday, and should be scheduled at least twenty-four (24) hours in advance;
IP Address Allocation / Ownership:
If PBH assigns Subscriber an Internet Protocol (“IP”) address and/or number(s) for Subscriber's use, the right to use that IP address/number shall belong solely to PBH, and Subscriber shall have no right to use that IP address/number except as permitted by PBH in its sole discretion in connection with the services provided by PBH to Subscriber during the term of this TOS Agreement. PBH shall maintain and control ownership of all IP addresses and numbers that may be assigned to Subscriber by PBH, and PBH reserves the right to change or remove any and all such IP addresses/numbers, in its sole and absolute discretion. PBH’s allocation of IP addresses/numbers is limited by the policies, as they exist from time to time, of the American Registry for Internet Numbers (“ARIN”), including policies providing that the use of IP addresses or numbers for IP-based virtual hosts are not acceptable as justification for new IP addresses or numbers. Pursuant to ARIN’s policies, as they exist from time to time, Subscriber must use name-based hosting whenever possible. PBH will periodically review IP address usage, and if PBH finds that Subscriber and/or Subscriber’s Sub-Users are using IP addresses or numbers where name-based hosting could be used, PBH will revoke authorization for the use of those IP addresses/numbers. All IP addresses/numbers that are allocated to Subscriber must be utilized within forty-eight (48) hours of allocation, otherwise PBH may retract said unused IP address or number without prior notification to Subscriber.
17. Unauthorized Use of Account:
Subscriber shall not reveal Subscriber’s account information to anyone, Subscriber shall protect and maintain the confidentiality and security of Subscriber’s account, Subscriber shall not use anyone else’s account, and Subscriber shall immediately notify PBH of any unauthorized use of Subscriber’s account or any other breach of security. Subscriber is solely responsible and accountable for, and PBH shall not be responsible or accountable for, any/all activities that occur on or through Subscriber’s account, including any and all acts or omissions by, or attributable to, any third party, using the service that PBH provides to Subscriber.
18. Disclosure of Subscriber’s Information to Law Enforcement and to Third Parties:
Subscriber herewith acknowledges and agrees that the PBH may disclose any and all Subscriber information, including, but not limited to, Subscriber contact information, assigned IP addresses/numbers, account history, account use, etc., to any law enforcement agent who requests it, without further consent or notification to Subscriber. In addition, as may be allowed by ARIN policies from time to time, PBH will provide any third party with Subscriber contact information (including the name, telephone number, email address and other contact information of Subscriber). PBH shall apply the terms of this section to any/all of Subscriber’s Sub-Users, and Subscriber shall notify all of Subscriber’s Sub-Users of these terms,
19. SPAM / Unsolicited Commercial Email (UCE) / Unsolicited Bulk Email (UBE):
DO NOT SPAM FROM YOUR ACCOUNT. Subscriber may not use or permit others to use the service that PBH provides to Subscriber to transmit (including by email, uploading, posting or other transmission), originate, pass through or otherwise transact any SPAM, UCE and/or UBE. Violations of this policy carry, as well as possible suspension or cancellation of service, additional penalties and/or remedies, including, but not limited to:
PBH reserves the right to drop the section of any IP space involved in any SPAM/ UCE/ UBE or Denial of Service (DOS) complaints if PBH determines, in its sole discretion, that the offending activity is causing, or may cause, harm to other parties on the Internet (particularly if open relays are on Subscriber’s network or on a Subscriber's Sub-User’s network, or if DOS attacks are originating from Subscriber’s network);
Subscriber will pay "Research Fees" of $250.00 per hour to compensate PBH for employee time spent investigating Subscriber’s violation. PBH reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated violation;
First violations of PBH’s SPAM/ UCE/ UBE policy will result in an "Administrative Fee" of $300.00; a second violation will result in an "Administrative Fee" of $750.00, and immediate cancellation of Subscriber’s service; and
PBH may notify law enforcement officials if the violation is believed to be a criminal offense;
PBH's remedies are cumulative and they may be exercised concurrently or separately at any time.
Lack of action by PBH with respect to any remedy shall not serve as a waiver of that or any other remedy at any time;
IMPORTANT NOTICE:
A Subscriber hosting websites or services on Subscriber’s server computer supporting spammers or resulting in any of PBH’s IP space to be listed in any of the various Spam Databases or black hole lists will have its service immediately disconnected. Such suspended service will not be reconnected until such time that Subscriber agrees to remove ANY and ALL traces of the offending material immediately upon reconnection, and agrees to allow PBH access to its server computer(s) to confirm that all material has been COMPLETELY removed. Because Subscriber is ultimately responsible for the actions and omissions of Subscriber’s Sub-Users, it is advisable that Subscriber develop a similar policy for its Sub-Users.
20. Compliance with PBH’S AUP:
PBH’s AUP is an integral part of this TOS Agreement, and Subscriber agrees to comply with PBH’s AUP, and to take reasonable steps to ensure that Subscriber’s Sub-Users comply with PBH’s AUP at all times. PBH’s AUP applies to Subscriber and to each/all of Subscriber’s Sub-Users and to each/all server computer, network, device and/or system under Subscriber’s control or assigned to Subscriber related to the service PBH provides to Subscriber. Subscriber is, and will be held, responsible and accountable for any and all activity and/or omission by, or attributable to, any third party directly or indirectly using or benefiting from PBH’s services that violates any of the terms of PBH’s AUP;
PBH reserves the right to investigate actual, suspected or alleged violations of PBH’s AUP, which includes the right to access data, information, contents and records on, or associated with, any server computer(s) of, or assigned to, Subscriber. PBH shall not be in default of this TOS Agreement if PBH’s investigation causes Subscriber to incur downtime or requires the sequestering of all or a portion of the Subscriber’s server computers;
PBH may involve, and cooperate with, law enforcement authorities in investigating and/or prosecuting Subscriber and/or Subscriber’s Sub-Users who are involved in any violation of PBH’s AUP. Subscriber shall assist PBH to comply with all laws, ordinances, regulations and rules related to the service PBH provides to Subscriber. Subscriber shall cooperate and comply with any/all civil or criminal investigations regarding activity through, and data, information, contents and records on, or associated with, any server computer(s) of, or assigned to, Subscriber, including, without limitation, discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court or government entity (each an "Investigation"). Without limiting any other right of PBH, PBH reserves the right to comply with any Investigation without notice to Subscriber;
Without limiting PBH’s right to, at any time for any reason, cancel this TOS Agreement and permanently disconnect the service that PBH provides to Subscriber, PBH may also, in its sole discretion, take any one or more of the following remedies for a violation of PBH’s AUP:
Disable access to Subscriber’s content that violates PBH’s AUP;
Remove DNS records from Subscriber’s server computer(s);
Block email or any other network services;
Effect IP address null routing;
Take direct action against Subscriber’s Sub-Users;
Charge Subscriber for remedial actions, and recover any and all expenses from Subscriber in connection with any violation of PBH’s AUP attributable to Subscriber.
PBH's remedies are cumulative and they may be exercised concurrently or separately at any time.
Lack of action by PBH with respect to any remedy shall not serve as a waiver of that or any other remedy at any time;
21. IRC:
If Subscriber runs IRC on our standard network, PBH will disconnect the service that PBH provides to Subscriber until Subscriber agrees to be moved to PBH’s IRC network.
22. PBH's Remedies Cumulative / No Waiver:
PBH’s remedies under this TOS Agreement are cumulative, and they may be exercised concurrently or separately at any time. Lack of action by PBH with respect to any remedy shall not serve as a waiver of that or any other remedy at any time.
23. PBH’s Trademarks:
All trademarks, service marks, logos, product names and service names of PBH comprise the trademarks of PBH, and Subscriber shall not, and shall not allow any third party to, display or use in any manner said trademarks without PBH’s prior written permission.
24. Colocation Servers/Equipment and Insurance:
Not by way of limitation of the other provisions of this TOS Agreement, particularly the provisions of Sections 10.G and 10.H., PBH is not responsible for, and Subscriber is solely responsible for, fully insuring Subscriber’s and Subscriber’s Sub-Users’ colocation system/data against destruction, damage, taking, unavailability or other loss, and PBH is not responsible for, and Subscriber is solely responsible for, fully insuring any/all colocation server computers, components and equipment owned or controlled by Subscriber against loss and damage during shipment, handling, placement and use, whether said server computer/equipment is in PBH’s possession or control or otherwise. Subscriber is solely responsible for packaging and removing from PBH’s premises/control any/all colocation servers and equipment owned or controlled by Subscriber. Subscriber shall pay PBH a $25.00 handling fee plus shipping costs per package for any server/equipment that Subscriber requests PBH to ship. Any colocation server or equipment not removed within fifteen (15) days after cancellation of this TOS Agreement for any reason will be considered abandoned and forfeited.
25. Acceptable Use Policy for Dedicated Servers:
Subscriber acknowledges and agrees that the provision of services to Subscriber by Paintball Hosting.com, LLC (“PBH”), and Subscriber’s acceptance and use of PBH’s services, constitute Subscriber’s acceptance of and agreement to the terms and conditions of this document -- PBH's Acceptable Use Policy (“PBH’s AUP”) -- and that PBH’s AUP is an integral part of, and is incorporated by reference into, the Terms Of Service (“TOS”) Agreement by and between PBH and Subscriber.
PBH may amend PBH’s AUP from time to time by posting it at http://www.paintballhosting.com/blog , and Subscriber’s use of PBH’s services after PBH posts any such changes on its website shall constitute Subscriber's acceptance of any/all such amendments.
25a. VIOLATIONS:
Doing, causing or allowing (whether by act or omission) any of the following, and/or any direct or indirect aiding or abetting of any person or entity to do, cause or allow (whether by act or omission) any of the following, is considered a violation of PBH’s AUP and of the TOS Agreement between PBH and Subscriber:
1) Illegal Activities: Using PBH’s services for illegal purposes or in support of illegal activities, including, but not limited to, transmitting (by email, uploading, posting or otherwise) or distributing, downloading, copying, caching, hosting or storing data, information or content which, in PBH’s sole determination, constitutes a violation of any relevant law, regulation, ordinance or court order. Subscriber shall be responsible for determining what laws, regulations, ordinances and court orders are applicable to its use of PBH’s services;
2) Threats: Using PBH’s services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that threatens or encourages bodily harm, destruction of property or any other type of harm;
3) Harassment: Using PBH’s services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that harasses or stalks another;
4) Harmful: Using PBH’s services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material that is harmful, abusive, defamatory or libelous;
5) Violation of Duty: Using PBH’s services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material in violation of any duty under any law (including court order), contract or any fiduciary relationship;
6) Forgery or Impersonation: Adding, removing, modifying or forging any message header, network header, TCP/IP packet header or any part of any header or information in any transmission (including any email, upload, posting or other transmission), originating or passing through PBH’s services, in an effort to deceive or mislead another; impersonating or attempting to impersonate any person or entity in any transmission (including any email, upload, posting or other transmission) originating or passing through PBH’s services; misleading or attempting to mislead any person or entity by use of incorrect identifying information. The use of anonymous re-mailers or nicknames does not constitute a violation hereunder. Subscriber must maintain a policy requiring proper “From” and/or “Reply To” headers on all email and usenet postings.
7) Fraud/Fraudulent Activity: Using PBH’s services in furtherance of or involving any fraudulent activity or fraudulent purpose, or to make any fraudulent offers to sell or buy products, items or services, or to advance any type of financial scam including, but not limited to, pyramid schemes, chain letters or any other financial scam; using PBH’s services to effect a misrepresentation or misleading statement, writing or activity;
8) SPAM / Unsolicited Commercial Email (UCE) / Unsolicited Bulk Email (UBE): Using PBH’s services to: transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any spam, UCE or UBE; operate mailing lists, listservs or mailing services that target an audience that has not voluntarily signed up for email information using a double opt-in process or that has not made their email addresses available to Subscriber for distribution of information; effect spamming via third-party proxy, aggregation of proxy lists or installation of proxy mailing software; accept and process third-party messages for sending without user identification and authentication; host, or permit hosting of, web pages, sites or information advertised within SPAM, UCE or UBE from another network (such as spamvertising); violate the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act), establishing requirements for sending certain types of commercial mail.
IMPORTANT NOTICE: A Subscriber hosting websites or services on Subscriber’s server supporting spammers or resulting in any of PBH’s IP space to be listed in any of the various Spam Databases or black hole lists will have its service immediately disconnected. Subscribers who operate mailing lists, listservs or mailing services must a) maintain complete and accurate records of all consents and opt-ins, including the actual emails and their headers, b) provide such records to PBH upon request, and c) allow any party on the list to remove itself automatically and permanently. If Subscriber cannot provide proof of such consents and opt-ins,PBH will consider the mass mailing to be unsolicited. Subscribers must maintain proper security on their servers to prevent them from being used as SPAM amplifiers by third parties;
9) Interference: (Several of the sites called this “threatening the integrity of the network” or “threatening the integrity of another network”)Interfering with, disrupting or adversely affecting, or attempting to interfere with, disrupt or adversely affect, the ability to use PBH’s services, the Internet or any other services or equipment (this includes denial of service attacks against another network, host or individual user); using PBH’s services to interfere with, disrupt or adversely affect, or to attempt to interfere with, disrupt or adversely affect, the service of any subscriber, subscriber’s sub-users, host, network or system, including, without limitation, via means of overloading, flooding, email bombing, news bombing, crashing or any similar activity; using PBH’s services to impede another person’s use of electronic mail services or news; using any program, or sending messages of any kind, designed to interfere with or disable a user’s session;
10) Usenet SPAMing: Using PBH’s services for the purpose of transmitting (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any material, messages or commercial advertisements that violate the regulations, FAQ’s, charters, policies or other rules of any newsgroup or mailing list. Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup rules; commercial messages deemed appropriate under the rules of a newsgroup or mailing list, or that are solicited by the recipients, are permitted;
11) Unauthorized Access (Cracking/Hacking): Accessing, corrupting or taking, or attempting to access, corrupt or take, any data, information or the accounts of others; logging into a server or account, or entering or using or attempting to enter or use another person’s or entity’s computer system which Subscriber/ Subscriber’s Sub-User is not authorized to access, enter or use; penetrating or attempting to penetrate PBH’s security measures or another person’s or entity’s computer software or hardware, electronic communications system, or telecommunications system or security; and any similar activity prohibited by federal or state law;
12) Infringement on Intellectual Property Rights: Using PBH’s services to transmit (by email, uploading, posting or otherwise), distribute, download, copy, cache, host or store on a server any information, data, content, material or work that infringes any copyright, trademark, service mark, patent, trade secret any or other intellectual property right(s) of any person or entity;
13) Collection of Personal Data: Using PBH’s services to collect, or to attempt to collect, personal information about third parties without the third party’s(ies’) knowledge or consent;
14) Unfriendly Activity: Subscriber’s/ Subscriber’s Sub-User’s (as defined in the TOS Agreement) allowance of others to use its/their network, or permitting its/their network to be configured in such a way that affords a third party the capability to use its/their network, in an illegal, inappropriate or unfriendly manner; causing or initiating security breaches or disruptions of network communication or connectivity; executing any form of activity that intercepts data not intended for Subscriber’s/ Subscriber’s Sub-User’s server(s); evading or circumventing user authentication or security of any host, network or account; engaging in any conduct designed to avoid restrictions or access limits to specific services, hosts or networks; probing, scanning or testing, or attempting to probe, scan or test, the vulnerability of a system or network without proper authorization; breaching or attempting to breach security or authentication measures without proper authorization; taking any action in order to obtain, or attempting to obtain, services to which such Subscriber/ Subscriber’s Sub-User is not entitled;
15) Distribution of Unwanted Software: Using PBH’s services to effect the intentional distribution of software or computer code, files or programs that causes, or attempts to cause, damage, harassment or annoyance to persons, entities, data and/or computer systems;
16) Inappropriate Use of Software: Using PBH services to employ software or any device that would facilitate a continued connection (such as pinging) or would negatively affect a person’s or entity’s ability to engage in real time exchanges;
17) IRC Networks: Running IRC on PBH’s standard network. IRC is allowed only on PBH’s separate IRC network.;
18) IP Addresses: Using IP addresses that were not assigned to it by PBH;
19) Support to Terrorists: Using PBH services to provide support or resources (including concealing or disguising the nature, location, source, or ownership of support or resources) to any organization designated by the U.S. government as a terrorist organization pursuant Section 219 of the Immigration and Nationality Act;
20) Gambling: Using PBH services for or to promote gambling that is or may be prohibited or restricted by any state or federal gambling laws or regulations;
21) Harm to Minors / Child Pornography: Harm to Minors / Child Pornography: Using PBH services to harm minors in any way or transmitting (by email, uploading, posting or otherwise), distributing, downloading, copying, caching, hosting or storing on a server any child pornography as defined by U.S. law. Adult content is allowed; and
22) Violation of Security: Violating or attempting to violate the security of PBH’s systems.
All of the above listed examples constitute a violation and penalties can range from disconnection of service without notice or recourse up to a $1,000.00 Administrative fee.
It is Subscriber’s obligation to maintain and enforce these provisions against all of Subscriber’s Sub-users,to maintain its own abuse/postmaster email addresses for reporting abuses and to promptly and appropriately respond to all emails sent to these addresses.
Please consult an attorney if you are uncertain of the legal status of your any of your activities.
PBH will comply with all orders and obligations of any court or government agency.
PBH expressly disclaims any liability for the data and content residing on its network and for the actions and inactions of its Subscribers, including Subscriber’s Sub-Users
