Terms of Service

Clients will be held responsible for any and all actions performed by their account whether done by the account holder or by others! If server security is compromised, the account holder is responsible for all violations of these Terms of Service (so called herein) and DigitalCityHosts’ Acceptable Use Policy (“AUP”), including SPAM, and all disconnect and reconnect fees associated with violations. DigitalCityHosts does not harden or enable additional server security software outside of operating system defaults.

The following terms constitute an agreement between you and DigitalCityHost. ("DigitalCityHost"). These Terms of Service govern your use of the services provided by DigitalCityHost (the “Services”).

BY USING THE SERVICES YOU SIGNIFY THAT YOU AGREE TO THESE TERMS OF SERVICE, including that you agree to transact with us electronically, that you consent to the information practices disclosed in our AUP, and that you consent to resolve in Dallas County, Texas any dispute that you may have with us, our suppliers, or the Services. Please note that we offer the Services "AS IS" and without warranties.

These Terms of Service govern your relationship with us and our suppliers. We may change these Terms of Service at any time, as we deem appropriate. If we make changes that we believe will have a material impact on your use of the Services, we will let you know by sending you an email if we have a current email address for you, and by noting on our website that these Terms of Service has been updated. If you disagree with the changes to these Terms of Service, discontinue your use of the Services. Your ongoing use of any Services after the changes take effect signifies your agreement to the new terms. We encourage you to review these Terms of Service regularly.

DigitalCityHost’ Responsibilities
DigitalCityHost agrees to furnish services, which are paid for in advance by the client, to the client, subject to complete compliance with the AUP and these Terms of Service. DigitalCityHost reserves the right to refuse Services to any potential client and/or to deny renewal of Services to any existing client, at the sole discretion of DigitalCityHost.

Changes to Terms of Service and AUP
DigitalCityHost’ Terms of Service and AUP are both subject to change at any time and without notice at the sole discretion of DigitalCityHost. A change in policy shall not be grounds for early contract termination or non-payment. Client recognizes that the nature of the service supplied and the initial rates and charges have been communicated to the client. The client is aware that from time to time rates may change based on availability of hardware, overall market conditions or other factors. Clients will be notified of any increases in rates or charges prior to the billing renewal date on which such increases will take effect.



Non-Payment/Service Interruption
Services interrupted for non-payment may be subject to a $200 reactivation fee. Data stored on a client’s services will not be available to the client until reconnection is established or alternative arrangements are made to the sole satisfaction of DigitalCityHost. Clients deactivated for non-payment or charge-back are subject to their data being destroyed seven (7) days from suspension/charge-back date. DigitalCityHost is not responsible for data integrity, regardless of circumstance. DigitalCityHost strongly recommends keeping up to date and off network backups to protect against data loss.

Refunds/Charge-Backs
No Services rendered by DigitalCityHost are eligible for a refund. Prepayments and account credit are ineligible to be refunded, or transferred to alternate accounts. Any and all charge disputes must be reported directly to DigitalCityHost within thirty (30) days of the date which the charge originally occurred. If a charge which is deemed valid by DigitalCityHost, and validated by our Terms of Service or AUP, is disputed to a financial institution by performing a charge-back, then the client agrees to pay an 'Administrative Fee' of $200 in addition to original amount of funds which were reclaimed.

Suspensions
In the event a service is suspended, it will be subject to termination seven (7) days from the time of suspension. DigitalCityHost assumes no liability for the integrity of the data stored on a suspended server.

Cancellations
DigitalCityHost requires a five (5) day notice of cancellation prior to the billing renewal date for the upcoming billing cycle, submitted via support ticket. A five (5) day notice before the upcoming billing date is also required for any downgrades. All client data will be destroyed immediately after the cancellation date.

Fraud
In the event fraud is discovered the fraudulent account, and all related accounts, are subject to immediate suspension or termination at the sole discretion of DigitalCityHost. All information available to DigitalCityHost about the fraudulent account/service shall be submitted to both local authorities, as well any financial institutions involved. All fraudulent orders are investigated, and all fraudulent clients will be prosecuted to the fullest extent of the law, whether within the United States, or abroad.

Disclaimers of Liability; Indemnification
WE PROVIDE THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE AND OUR SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE AND OUR SUPPLIERS DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. NO ORAL OR WRITTEN INFORMATION GIVEN BY A DIGITALCITYHOST REPRESENTATIVE SHALL CREATE A WARRANTY. You may have additional consumer rights under your local laws that this contract cannot change. You use the Services at your own risk. 
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR OUR SUPPLIERS IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR, OUR AFFILIATES’ AND OUR SUPPLIERS’ AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID DURING THE PERIOD DURING WHICH SUCH CLAIMS AROSE. WE, OUR AFFILIATES, AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR AFILLIATES AND SUPPLIERS, SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. 
You agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, affiliated companies, and suppliers, from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your use or misuse of the Services. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Support
DigitalCityHost provides hardware support related to each direct client’s service functioning. DigitalCityHost does not offer software support of any kind. DigitalCityHost does not provide software support/troubleshooting for the software items chosen from the order form. DigitalCityHost only ensures the correct default installation of any software item chosen from the order form, and in no way assumes liability for the configuration of any of the installed software. DigitalCityHost is not responsible for any downtime associated with the incorrect configuration of operating system kernels or any software, whether installed by DigitalCityHost or the client. DigitalCityHost may provide enhanced software support (including kernel configuration) for an additional fee. Please contact sales or support for enhanced support pricing. Each client is eligible for one (1) complimentary operating system (“OS”) reload per billing cycle; each additional OS reload is $50 per reload. Installation of an unsupported OS is subject to the prior approval of DigitalCityHost and to a $50 fee. DigitalCityHost does not provide any type of support to the clients of our clients (third party clients). DigitalCityHost will only provide support directly to clients of DigitalCityHost.

Abuse/Spam/Bulk Email Policy
DigitalCityHost does not allow bulk mailing of any kind from its network, including but not limited to SPAM or SPIM. You may not allow others to use your account to violate the terms of these Terms of Service. If DigitalCityHost receives an abuse complaint or otherwise becomes aware of abuse-related activities from its networks, it will identify the server the abuse was initially sent from (via IP), create a comprehensive list of the abuse complaints associated with the server in question, and issue an Abuse Notification to the client whose account(s) are associated with such complaints. An instance of a spam complaint is defined as one marketing E-mail. The first Abuse Notification will provide a warning to the client and assess a $25 fine. The second Abuse Notification will assess a fine of $25 per complaint received with a maximum fine of $125. The third Abuse Notification will terminate all Services to the account and/or client in violation of these Terms of Service, as well as assess a fine of $25 per complaint received with a maximum of $250. DigitalCityHost reserves the right to refuse Services to any client whose account(s) have been fined or terminated for abuse-related activities. If an IP range or IP address has been black-listed as a result of an abuse complaint, DigitalCityHost will issue a fine of $200 and reserves the right to immediately terminate the service, at the sole discretion of DigitalCityHost. 

Compromised Servers Issued Abuse Notifications: If DigitalCityHost suspects that a client’s server has been infiltrated in an effort to be utilized for abuse purposes, DigitalCityHost will offer the following options: 

- Offer an Operating System reinstallation, setting the configuration back to the original state it was provisioned in. 

- If Operating System reinstallation is not accepted as an option, DigitalCityHost may offer to manually retrieve/repair the files on the server, at a fee to be assessed and paid prior to any work being done. 

- On the second instance of server compromise DigitalCityHost reserves the right to terminate the client’s services. 
If a client wishes to dispute any abuse complaints, or any fine assessed in connection with any such complaints, the client must provide DigitalCityHost with full logs as well as any additional information requested by DigitalCityHost within 48 hours of the initial Abuse Notification. Failure by a client to dispute, or to provide any required information within such 48 hour time period, will be deemed acceptance of the notification and all assessed fines associated with it.
DMCA Complaints
DigitalCityHost handles any and all Digital Millennium Copyright Act (“DMCA”) complaints very seriously, and will thoroughly investigate each complaint received. DigitalCityHost reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. The first violation of this policy will result in an 'Administrative Fee' of $250, and DigitalCityHost reserves the right to terminate the service or account. A second violation will result in an 'Administrative Fee' of $500 and will also result in the immediate termination of the service or account. Users who violate this policy agree that in addition to these administrative penalties, they will pay ‘Research Fees’ not to exceed $175 per hour that DigitalCityHost personnel must spend to investigate the matter, to be charged only if claims are found to be valid. 

Bandwidth Usage/Overages
Clients agree to pay any and all bandwidth overage charges accrued on their account from the previous billing cycle. Bandwidth overage charges are billed per gigabyte at a rate of $0.25 (twenty five cents) over the allotted bandwidth on the service. DigitalCityHost reserves the right to suspend any account which does not pay bandwidth overage charges promptly. DigitalCityHost is not responsible for spikes in bandwidth that are caused on a client’s service for any reason. Client assumes liability for all bandwidth to and from their services. If issued an expected to exceed bandwidth notification, clients are required to make payment arrangements within 24 hours of that notification to prevent possible service interruption until adequate arrangements are made. These arrangements may include being required to pro-actively upgrade bandwidth.


Payment Verification
Clients agree to submit to identity verification measures, designed for both the security of the client as well as the security of DigitalCityHost. The identity verification measures may include the faxing of two forms of government issued identification to DigitalCityHost, as well as a front and back copy of the credit card used for payment, as well as a copy of a utility bill will the billing address. In certain circumstances additional identity verification may be required, in addition to the previously listed forms.

Publicity
Clients consent to DigitalCityHost’ public disclosure that they are providing services to the client, which may include using the clients name in promotional materials. DigitalCityHost reserves the right to use client quotes for promotional uses. 

Electronic Notifications
Your affirmative act of using the Services constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. You also agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”). We can send you electronic Notices to the e-mail address that you provided to us during registration. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the applicable Services. In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and a Windows-based or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices. You can retrieve an electronic copy and a printable version of this contract by clicking on the “Terms of Service” link on any web page that hosts any of the Services. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. 

Entire Agreement
This contract and any supplemental terms, policies, rules and guidelines posted on our website constitute the entire agreement between you and us and supersede all previous or contemporaneous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. 

Choice of Law and Location for Resolving Disputes
You agree that the laws of the State of Texas govern this contract and any claim or dispute that you may have against us or our suppliers, without regard to the conflict of laws rules thereunder, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us or our suppliers will be resolved exclusively by a court located in Dallas County, Texas. PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN DALLAS COUNTY, TEXAS OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US RELATING TO OR ARISING OUT OF THE SERVICES, THE SERVICE OR THE AGREEMENT; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN DALLAS COUNTY, TEXAS FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

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